Brady's blind spot: impeachment evidence in police personnel files and the battle splitting the prosecution team.

AuthorAbel, Jonathan
PositionIntroduction through II. Brady's Application to Police Personnel Files in the States C. Group 3: 'Access and Disclosure' Regimes, p. 743-775

INTRODUCTION I. BRADY IN THE FEDERAL COURTS A. Basics on Brady, Personnel Files, and Impeachment Evidence B. The Supreme Court C. The Lower Federal Courts 1. The limits of constructive knowledge 2. Law enforcement personnel files a. The circuit split b. The Justice Department policy c. The policy's effect on the doctrine II. BRADY'S APPLICATION TO POLICE PERSONNEL FILES IN THE STATES A. Group 1: "No Access" Regimes B. Group 2: "Public Access" Regimes C. Group 3: "Access and Disclosure" Regimes D. Group 4: "Access but No Disclosure " Regimes III. THE BRADY BATTLE WITHIN THE PROSECUTION TEAM A. The Prosecutor's (and the Police Chief's) Brady Power B. Police Officer Pushback 1. Litigation 2. Legislation 3. Political pressure IV. PROTECTIONS FOR POLICE PERSONNEL FILES VIOLATE BRADY A. Brady Versus Other Evidentiary Privileges B. Why Police Personnel Files Are Different 1. Justifications for the privilege 2. The police officer's special status C. Procedural Problems with Brady Balancing Systems 1. Brady decisions made in the abstract 2. Threshold requirements for triggering in camera review 3. Conflicts of interest and ex parte communication 4. Protective orders interfere with constructive knowledge V. SOLUTIONS CONCLUSION INTRODUCTION

The Supreme Court decided Brady v. Maryland in 1963, (1) and it has spent the past fifty years expanding the doctrine. (2) Brady requires prosecutors to disclose favorable, material evidence to the defense, including anything known to the prosecutor or to any member of the prosecution team. (3) Recently, Brady violations have received much attention, with blame focused squarely on prosecutors. Courts have appointed special counsel to investigate Bradysiolating prosecutors, threatened criminal proceedings against prosecutors who withhold Brady material, (4) and gone as far as to declare "an epidemic of Brady violations abroad in the land." (5) Prosecutors must "stop playing games with Brady," and courts must "deal more harshly with prosecutors who don't play fair," according to a recent Los Angeles Times editorial. (6) The New York Times editorial board attacked Brady violations under the heading "Rampant Prosecutorial Misconduct." (7) Meanwhile, the scholarly literature has criticized prosecutors who "willfully bypass[] the disclosure rules," (8) "intentionally, knowingly, or at least recklessly withhold potentially exculpatory evidence," (9) and "require the accused to undertake a scavenger hunt for hidden Brady clues." (10)

But there is a critical source of Brady material that even well-meaning prosecutors are often unable to discover or disclose: evidence of police misconduct contained in police personnel files. These files contain internal affairs reports, disciplinary write-ups, and performance evaluations, documenting a range of information that defendants can use to their advantage at trial. In many cases, these files contain evidence of an officer's dishonesty--evidence that can be critical to impeaching the officer's testimony. In some jurisdictions, this evidence of police misconduct is freely available to the public. But in other jurisdictions, state laws and local policies make this information so confidential that not even the prosecutor can access the files without a court order. These restrictions on access, in turn, result in the routine and systematic suppression of Brady material. While the U.S. Supreme Court's constitutional interpretations are supposed to govern all criminal trials, the reality is that Brady's due process demands are applied in dramatically different ways depending on where the defendant is tried.

Brady's application to police personnel files has grave implications for defendants and police officers. For defendants, the impeachment material in these files can mean the difference between life and death. Misconduct findings are so valuable because they are the police department's own assessment of the officer's credibility. A report in one case found that a detective's "image of honesty, competency, and overall reliability must be questioned." (11) Records in another revealed a detective's repeated lies to internal affairs investigators, a psychological assessment that the detective "should not be entrusted with a gun and badge," and a warning to the police department from the office of the state attorney general: "If you had a homicide tonight..., I would instruct you that [the detective] not be involved in the case in any capacity." (12) Findings from other cases excoriated officers for making false overtime claims, (13) filing false police reports, (14) and stealing from the police department. (15) When this misconduct has come out, sometimes decades after trial, murder convictions have been overturned and people have been released from death row. (16)

Meanwhile, for officers, Brady's application to their files jeopardizes not their lives but their livelihoods. Officers whose credibility is called into question by police misconduct may not be able to testify in future cases. And officers who cannot testify--so-called "Brady cops"--cannot make arrests, investigate cases, or conduct any other police work that might lead to the witness stand. Such officers would be well advised to start looking for a new profession. Making matters worse, officers fear that prosecutors and police chiefs will abuse the Brady-designation system by labeling officers as Brady cops in order to punish them outside the formal channels of the police disciplinary system and all its procedural protections. For the officers, then, Brady is a matter not only of defendants' due process rights but also of their own due process rights. To protect their interests, officers and police unions have pushed back on Brady's, application to police files, launching a campaign of litigation, legislation, and informal political pressure aimed at prosecutors and police chiefs. (17) This conflict over Brady's, application has split the prosecution team, pitting prosecutors against police officers and police management against police labor.

Despite the high stakes of applying Brady to police personnel files--or, perhaps, because of them--there is no nationwide consensus on how to approach this issue. Wide variations in Brady's application to these files stem from a multiplicity of state laws and local policies protecting personnel files, as well as from differences in the institutional dynamics between and within prosecutors' offices and police departments.

Using interviews with prosecutors, police officials, and defense attorneys around the country, as well as unpublished and published sources, this Article provides the first account of the wide disparities in Brady's application to police personnel files. It argues that critical impeachment evidence is routinely and systematically suppressed as a result of state laws and local policies that limit access to the personnel files. Beyond these policies, Brady's application to the files is further impeded by the conflict within the prosecution team. Brady assumes that prosecutors and police officers form a cohesive "prosecution team" and that, in the words of the Supreme Court, "the prosecutor has the means to discharge the government's Brady responsibility if he will" by putting in place "procedures and regulations" to bring forth information known only to the police. (18) But when it comes to Brady's application to these personnel files, the prosecution team is at war with itself, and this internal battle makes the concept of the prosecution team fall apart. Finally, the Article contends that privacy protections for police misconduct are incompatible with core aspects of the Brady doctrine and that systems that attempt to balance Brady against police privacy wind up sacrificing the former to the latter. The Article argues that, as both a doctrinal and a normative matter, police misconduct should receive no protections from Brady's search and disclosure obligation, and that, because the blame for Brady violations goes far beyond the prosecutor's office, so must the solutions. (19)

This Article proceeds in five parts. Part I looks at how the Supreme Court's Brady doctrine applies to police personnel files and at the doctrinal ambiguities the federal courts have failed to resolve.

Parts II and III discuss how the states have applied Brady to these files. Part II examines how varying state laws and local policies affect Brady compliance. The discussion provides a novel framework that divides jurisdictions into four groups: (1) those where prosecutors cannot access the personnel files; (2) those where prosecutors need not access the files because the records of misconduct are accessible to the public and thus not considered Brady material; (3) those where prosecutors have access to the files and use that access to search for and disclose the misconduct information; and (4) those where prosecutors have access to the files but do not put systems in place to search for or disclose the information. Part III contends that, even when prosecutors can discover and disclose Brady material in the files, they face much pressure from police officers and unions not to. This conflict within the prosecution team over Brady's application to the files--a conflict described as the "third rail" of the prosecutor-police relationship (20)--has also pitted police brass against police labor. Part III argues that the internal conflict within the prosecution team is a further impediment to Brady's application to records of police misconduct.

Part IV argues that police misconduct does not deserve the confidentiality protections it currently enjoys. Even if it did deserve such protections, the systems that purport to balance Brady against police confidentiality violate core tenets of the Brady doctrine and make bad public policy by allowing dishonest officers to continue to testily. Part V argues that the solutions for this Brady problem must look beyond...

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