Better And Better

If you don't draw yours, I won't draw mine. A police officer, working in the small town that he lives in, focusing on family and shooting and coffee, and occasionally putting some people in jail.

Monday, July 27, 2015

Brady disclosure.

In 1963, the US Supreme Court ruled (quite correctly) in Brady v. Maryland that any and all evidence collected and/or held by the state in a prosecution is to be passed on to the defense. To fail to forward all of it to the defense would result in a lack of due process, which at the minimum would guarantee that the defendant's case would be dismissed. Over the years, this has come to some interesting ends. For one thing-- if an officer investigating a criminal case takes 32 photographs of the exact same thing, but only 1 of the pictures is in focus, all 32 still must be included in the case file turned over to the defense.  The thought is that the first or the 31st picture might well have contained a shred of evidence which would have led toward the defendant's case.

For a prosecutor to possess information which could be exculpatory and not turn it over is not only grounds for dismissal of a case, it is grounds for civil, administrative, and even criminal sanction against the prosecutor himself.

This led to Brady Lists.

Occasionally, there are times when what the state's witness on the stand testifies to and what the prosecutor knows to be true don't line up. Maybe the witness was in error. Maybe the prosecutor's grasp of the facts were in error. Maybe a document which the prosecutor briefed himself with was in error. Or, sometimes, the witness just lied. When the prosecutor knows that a witness doesn't tell the truth on the stand, he cannot in good conscience put that officer on the stand again. Over the years, it became a practice for district attorneys to draw up forms which they had their Assistant D.A.'s fill out about questionable police witnesses. If an officer's name was on the Brady List at a DA's office, then the DA would either look for another officer with knowledge of the case to testify, or would dismiss the case. Presumably, they would also consider turning over their knowledge of the officer's alleged misdeed to the defense, if they had to go forth with the case.  But it didn't happen, because those lists were kept secret for a long while.

Until recently. Dallas County's list was just published, and Tarrant County just sent out disclosures about their lists to a bunch of defendants.

So it was that, a couple of weeks ago, my chief sent me a text:
"See the local paper's article [about the existence of Brady lists in our county DA's office]. Let me know if you think I should contact the DA office." 
I immediately replied: 
"Yes. You should. If we have an officer on staff whom our DA has deemed untrustworthy enough not to back, you need to know about it. Even as uncomfortable a topic as that is to contemplate."  
I went on to assure him that I doubted that we had anything to worry about.

I promptly forgot about the conversation until Friday, when the chief called me in and asked me with a stony face whether I had been worried about what the DA would say. I told him, quite honestly, that I hadn't been. I know that I rely on the other men in my department, and I know who they are, and know that they would not fudge the truth, even when it damns them. I would bet my life on it.

He smiled and told me that none of our officers in our small (less than 10 man) department was on the list, and that ours was one of the only departments in the county without a person on the list. I smiled with pride at the first part, but was a bit saddened and a little shocked by the second part of that sentence.

I have heard that some of these lists got combined with grading lists on whether the officer was a good testifier (Did he speak clearly, did he stumble over words, did he seem unsure of himself or frightened of the courtroom? Did he wear an inappropriate tie?), and thus it could turn out that an officer on such a list might have made only the error of being a shy person with bad taste in tropical neck apparel. I don't know if that is true or not. I do know that these lists are made and added to by young prosecutors who don't have to prove up their case. While some police unions and advocacy groups have questioned them, however, they have been upheld by courts. Getting one's name on such a list, ironically enough, brings up the whole question of due process again (which is how the whole Brady issue got started.). So, the best thing for an officer to do is to avoid all appearances of impropriety, and state only that which is known, and never, ever, EVER try to "wing it."

Okay, I'll admit that I'm a little bit proud of my department. But I'm not going to break my arm patting ourselves on the back about it.

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8 Comments:

At Tuesday, July 28, 2015 12:04:00 AM, Anonymous Anonymous said...

It seems to me that if there exists such frivolous criteria for selection to a list, that none of your department being named to such a list could be portrayed as a department which is overly compliant to them who make inane qualifiers.

I admit to not know the inner workings of the relationship between the DA and LEO yet with respect to the aforementioned list(s), a too good to be true altruism is the basis of the perception of conspiracy of those two parties. The people have developed a wariness of such relationships which often have proved beneficial only to those departments which are principal.

I have zero criminal history and I am careful with who I associate yet more often than what could be termed coincidental have I been subject to lengthy detainment in the field, sometimes with multiple weapons drawn upon my person, sometimes handcuffed, sometimes, physically harmed. 'For your safety', 'you look like the suspect', 'you seem suspicious' and other such reasons given as to explain why I was rolled on. This is only my personal experience, the list involves the absurd if I were to include the experiences of friends of who I would readily vouch of their good character. I'm sorry but a department receiving the highest of praise seems fishy and perhaps telling of a duplicitous arrangement. Departments are mad3 of individuals, none of us perfect. Yet none of an entire department found at fault for even one of those admittedly inane criteria?

 
At Tuesday, July 28, 2015 1:07:00 PM, Blogger Matt G said...

1. The vast majority of people never get detained lengthily in the field, especially with multiple weapons drawn on them and them getting handcuffed. I would bet that the number of persons whom I've held weapons on during my decade and a half as a patrol officer is less than 100. Given that this is ongoing, either your police department is unusual, or you are.

2. What department is receiving the highest of praise? You mean mine, because our small department isn't represented on the list? I assure you, sir or madam, that this falls short of the "highest of praise."

3. So if a department is said to be doing well, it is clear evidence that the department and/or the assessor is crooked? You're kind of a "The Glass Is Half Empty" sort of person, aren't you?

 
At Wednesday, July 29, 2015 7:24:00 AM, Blogger Old NFO said...

Good news, and a credit to your department! :-)

 
At Thursday, July 30, 2015 9:25:00 AM, Blogger Matt G said...

Re-reading Anonymous's post on 7/28, I see that I COMPLETELY missed his or her point entirely.
I owe you an apology, Anonymous.

 
At Thursday, July 30, 2015 3:13:00 PM, Blogger JPG said...

This comment has been removed by the author.

 
At Thursday, July 30, 2015 3:16:00 PM, Blogger JPG said...

Wow, your post took me back -- WAY back -- to an unpleasant duty I had while a DA's Investigator. The Chief Deputy Sheriff brought some paperwork by and introduced to our staff a man I had known in years past. The S.O. was to put him on the payroll the first of the month. I remembered the conditions under which he had left the employment of a previous sheriff. When the chief left, I waited for the First Assistant DA to return to the office and explained my concern. He recalled when that man had flat-out lied to me, and later to the him, about a series of criminal matters.

I told the First ADA that I had to go to the DA about the matter. He replied, "Damn' right you do, and I'll go with you." We related our knowledge to the DA. I said that I could never work with the individual on any criminal matter. The first assistant added that he could never call the man as a witness and sponsor his credibility. The DA said to tell the sheriff that he could hire the man if he wanted to, but his sworn testimony would never be worth consideration in our county's courts or grand jury. This done, the tentative hiring was rescinded.

It seemed a pity, in that the man came from a well respected family and he had been a capable officer. He had crossed himself up to further a personal relationship, and I doubt he had gained a dime from all his lying.

Sad, but needful. I've written this without names or dates, so it's unlikely to harm anyone now.

 
At Tuesday, August 04, 2015 6:30:00 PM, Blogger EMS Artifact said...

A few years ago my town brought in a new police chief to fix several problems. Without going into detail, there were reports of theft by police officers, arrests made to coerce people into paying civil debts, police brutality, and other bad conduct. Several officers were indicted and some were convicted.

The new chief immediately set up safeguards to ensure accountability, restore confidence in the police, and have actual supervision of officers.

One officer was caught making an unauthorized modification to his firearm. He was reprimanded and returned to duty. He was then caught doing something that was inappropriate. Nothing criminal, but something that reflected badly on the department and the town. Then he lied about that.

The chief asked for his resignation, despite that fact that this officer had several commendations on his record.

When asked, the chief said, "If he lied to me, then he might lie in court. If I can't trust his word, then he's no good to me as a police officer."

Your reputation for honesty is one of the most important things that a police officer (or anyone) has. If you lose that, you aren't much use to anyone.

 
At Tuesday, August 18, 2015 12:18:00 AM, Anonymous Anonymous said...

This blog post naturally lead me to think about this article:

https://www.washingtonpost.com/news/the-watch/wp/2014/04/16/how-do-we-fix-the-police-testilying-problem/

Perhaps the Brady Lists are good things, as they tend to show integrity on the part of the DA. From the article, it appears that isn't the case in every jurisdiction. There can be no criminal activity that poses a greater threat to social order and our way of life than if we have police departments and officers who hold the law in brazen contempt.

"Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
-- kMapp v Ohio (1961) 367 U.S. 643. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=367&invol=643


Keep up the excellent blog work!

 

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