A recent article titled “When Cops Lie” by Joaquin Palomino in the East Bay Express explores the problems that prevent impeachment evidence about police officers from being disclosed to defense counsel.
When a police officer is found to have falsified documents or lied under oath, that information must be disclosed to defense counsel under Brady v. Maryland and its progeny, since the information can be used to undermine the credibility of the officer as a state witness. Since they can be discredited by their prior conduct on the stand, officers who have been found to be untruthful in the past may be blacklisted on “Brady lists” by district attorneys and police chiefs, making it difficult for them to get jobs or testify in court in the future.
However, between misconduct being committed and evidence of that misconduct being turned over to defense attorneys, there is a whole series of steps that can impede the disclosure of impeachment evidence about police officers.
First of all, officers have to be investigated and findings of misconduct sustained before any action can be taken against them.[B]etween 2011 and 2012, OPD [Oakland Police Department] only sustained (meaning the department determined an officer was at fault and recommended punishment) 5 percent of all IAD investigations. In that period, there were 92 investigations pertaining to truthfulness or false police reports. This is problematic, because in order to automatically be put into Alameda County’s “Brady Alert System” — an automated program that notifies the DA every time an officer with potential Brady material is subpoenaed — an officer needs to have an IAD investigation pertaining to truthfulness or moral turpitude sustained.
Furthermore, officers are not necessarily fired for lying, and if they are, they may be hired by other agencies. In the case of two Oakland police officers fired for lying under oath, falsifying police reports, and conducting illegal searches and seizures, they were quickly picked up by the UC Berkeley Police Department:Even though Brady officers can impede a successful prosecution, UCPD Lieutenant Eric Tejada said the department had no reservations about hiring Rush and Kelly. “They have both been outstanding officers, and they bring a lot of knowledge and experience with them… [L]ooking at their work history as a whole, and not just that one incident, we felt they deserved the opportunity to be a part of the team here,” Tejada said. …UC Berkeley Police seems unconcerned that prosecutors could have difficulty obtaining future convictions in criminal cases that Rush and Kelly are involved in. “It’s something that’s going to come into play,” Tejada said, “but, hopefully, their demonstrated hard work will speak for itself.”
Next, there is a question of how much information about police officers’ histories that district attorneys care to know. Police departments may not pass personnel information on, and prosecutors may deliberately avoid collecting it:In Contra Costa County, the DA’s office asks all police officers to answer under oath if they’ve been arrested or if they’re on probation. If the officer answers “yes” to either question, they may be placed on the Brady list. “Our Brady obligation is limited to what we are in actual or constructive possession of,” Jewett said. “We don’t conduct an investigation or fish into lawsuits that citizens may have filed, or into police personnel files.” Still, Jewett noted that if the office somehow obtained potential Brady information, such as IAD investigations or evidence of moral turpitude, it would evaluate it. He said his office would place a cop on its Brady list if he or she had lied under oath.
Lastly, once prosecutors are in possession of incriminating information, they still use their discretion in deciding whether or not to turn it over to the defense:While the Brady law is meant to improve the integrity of prosecutions, many defense attorneys and criminal justice experts believe that it has deep flaws. For starters, the language of the law is vague and gives DAs a lot of leeway in shaping their own Brady policies. And because state law prevents Brady lists from being publicly accessible, defense attorneys have no choice but to trust that prosecutors are meeting their Brady obligations — even though a plethora of research suggests that prosecutors routinely fail to hand over exculpatory evidence to the defense.
In California, the Commission on the Fair Administration of Justice has recommended that all district attorneys offices formalize their Brady policies and keep track of officers tainted by past “untruthfulness” misconduct. However, Palomino notes, there is significant push-back from police departments who do not want their officers blacklisted or their careers stalled because of Brady requirements.Ron Cottingham, the president of the Peace Officers Research Association of California, said that when an officer is placed on a Brady list, it could kill his or her career. “What [the department] says is [the cop] can no longer testify in court, so they’re useless to me … merely because they’ve been put on a Brady list. That’s how devastating this can be to an officer’s career.” But as long as DAs remain guarded about their Brady policies, it will be easy for prosecutors to disregard their Brady obligations and not disclose unfavorable evidence on testifying police officers, which most defense attorneys consider a cornerstone of a fair justice system.
The Debra Milke case out of Maricopa County, Arizona, demonstrates that some district attorneys continue to put officers with compromised integrity on the stand and fail to disclose impeachment evidence about them. In Milke’s case, the detective who arrested her for the murder of her son, interrogated her, reported that she confessed to him and then said as much on the stand at her trial turned out to be a serial liar.
For more information, read our previous post here.