A federal district court in Michigan recently made clear that when it comes to the credibility of testifying police officers, prosecutors have a constitutional responsibility to locate and disclose information that may assist the defense in impeaching them. This, of course, is nothing new. Yet—as we so often document here—prosecutors are willing to make unsupported and untethered legal arguments, probably because the courts so often endorse them. Not this time. The Eastern District Court in McGowan v. Christiansen did what courts need to do more often in this arena—enforce the law.
Mr. McGowan was convicted of drug and gun charges in Monroe County Circuit Court about ten years ago. He filed a federal habeas claim based on Brady and Giglio because he later learned that “the officer in charge of the case, Lieutenant Luke Davis, systematically embezzled money and property seized from drug suspects between March of 2006 and December of 2008,” the time period including McGowan’s arrest and conviction. The prosecution disclaimed responsibility for knowing about Davis’s illegal and corrupt activities. As the court put it, the State “argue[d] that there was no Brady violation because the prosecution was unaware of Lieutenant Davis’ corruption at the time of his trial.” In a delightful rebuke, the court simply wrote, “Respondent is mistaken.”
Since at least 1995, it has been irrefutably clear that prosecutors are responsible for locating exculpatory evidence in the hands of relevant law enforcement agencies. They cannot simply turn a blind eye or encourage the police to sit on information that may be unhelpful to the prosecution. The fact that the State felt it could even put forth the argument says a lot about how prosecutors are willing to disregard or diminish their Brady obligations.
The State’s position and Mr. McGowan’s ten-year wait for judicial relief raise more questions the longer you look at the case. State police possessed hard evidence of Davis’s corruption as early as December of 2008. The very same prosecutor’s office that continues to litigate against Mr. McGowan initiated its criminal charges against Luke Davis in 2011. Why did it take until December of 2018 for the injustice to be brought into the light? One must also wonder if Monroe prosecutors will pay attention to an emerging trend in which District Attorneys disclose their “Brady lists” of unreliable police officers or reinvestigate cases in which those officers testified to protect individuals’ constitutional rights. It’s easy to be skeptical considering the arguments they’ve mustered in the McGowan matter. But, rather than dwell on these troubling considerations, let’s stop here and celebrate the judiciary doing the right thing and granting Mr. McGowan a new trial.