There has been a more robust dialogue lately about “Brady lists”—lists of discredited police officers whom prosecutors either refuse to rely upon as witnesses or whose cases they refuse to prosecute. These lists can play an important role in ensuring that a jurisdiction’s law enforcement agencies do not simply allow wayward police officers to lie or engage in unethical behavior without any repercussions. As more reform-oriented and progressive prosecutors seek to make use of this tool, a few caveats seem worthwhile.
Perhaps most importantly and most obviously, such lists do not exist in every jurisdiction. Prosecutors in many places around the country do not believe it is in their best interest to put in writing the names of problematic police witnesses. They do not want to jeopardize their cases, prioritizing instead the long-exalted conviction rate over the duty to see that justice is done. Indeed, all too often prosecutors continue to misunderstand or misrepresent their constitutional responsibility to identify and disclose to the defense evidence that may impeach their police witnesses. Let us not forget that focusing on places that have Brady lists may blind us to a broader problems of willful ignorance and law enforcement collusion to hide information showing that—gasp!—police officers sometimes lie.
Even in places where Brady lists do exist or prosecutors attempt to create them, we have identified several obstacles that prevent the key information from being provided to those who have a constitutional right to use it:
- Internal investigations must conclude that an officer has engaged in misconduct; for a huge range of reasons, those investigations may never happen or may happen very slowly.
- Information about an officer’s wrongdoing may be held in one jurisdiction, but the officer could easily get a job in another one, meaning the information is not located in the place it needs to be.
- Police agencies themselves may block prosecutors’ access to information, and sometimes they are aided and abetted by state laws drafted by powerful police unions. (Interestingly, a rare pro-transparency measures passed in California recently may also apply to Brady lists there.)
- Finally, even when prosecutors get the credibility-damaging information about officers, they often refuse to turn over their Brady lists to defense attorneys. Instead they cite their “discretion” to keep this information private.
Prosecutors have a great deal of power—not just over potential criminal defendants, but also over the relationships they maintain with local police. However, the police have leverage as well, and they are not afraid to use it to protect officers. If they succeed in passing laws and erecting hurdles to prosecutorial access to police personnel information, a Brady list has limited utility. (Of course, we cannot discount the possibility that some prosecutors are actually complicit in or don’t care about these barriers because they ultimately keep information away from individual defendants.) As much as we hammer home the reality of prosecutorial power, the movement to hold the State accountable for the criminal justice system must also pressure the police directly. Even the most justice-oriented prosecutors may be hindered by stubborn police. Frustrating as it is, there is no panacea for law enforcement misconduct. The public must stay vigilant, informed, and aggressive to keep up the momentum of change.