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

• Author: Abel, Jonathan
• Position: II. Brady's Application to Police Personnel Files in the States C. Group 4: "Access but Not Disclosure" Regimes through Conclusion, with footnotes, p. 775-808

4. Group 4: "Access but No Disclosure" Regimes

   In some jurisdictions, even though prosecutors have special access to the personnel files, they do not put in place systems to seek out Brady material in the files. This failure is sometimes attributable to ignorance of or disregard for the law. Other times, the decision not to search the files is driven, or at least abetted, by police departments and courts that treat the personnel files as a land where Brady does not shine. In some jurisdictions, prosecutors, police, and the courts effectively ignore Brady's application to personnel files, leaving defendants to make do with whatever impeachment material they can scrounge from the files via subpoena.

   Some jurisdictions show no recognition that internal affairs findings have implications for Brady, and this lack of awareness means that prosecutors never learn of the misconduct they would be required to disclose. For example, retired police lieutenant Richard Lisko asked the head of internal affairs at an unnamed Maryland agency about the agency's Brady policy for misconduct records. "What's that?" the internal affairs commander asked. "You mean the gun law?" (174) Lisko next asked the agency's legal director about the Brady policy for disclosing police misconduct. "We don't have one," the attorney said. "We require a subpoena, and then we challenge it in court." (175)

   Another illustration of this lack of awareness can be seen in Michigan, where the Commission on Law Enforcement Standards encountered a question in (2007) about "what duties exist on the part of law enforcement agencies to provide personnel files of police officers in pending criminal cases under the Giglio rule." (176) The Commission's attorney researched the question and reported back a month later that no duty exists. "The Giglio case in Federal practice has not been extended to the state," he said, so it was "not an immediate question that police or law enforcement officials need to be concerned with ... relative to an affirmative duty to turn over personnel records." (177)

   Even where prosecutors acknowledge Brady's application to personnel files, some have been slow to institute search and disclosure practices. For example, a New York statute makes police personnel files confidential but permits prosecutors to look in the files. (178) This special access thus foists a Brady' obligation on prosecutors to learn of misconduct in the files. But District Attorney Gwen Wilkinson, of upstate Tompkins County, said she has no formal system for learning of impeachment evidence in the personnel files--though she plans to implement one soon. (179) Indeed, her lack of a system for learning of police misconduct was an issue in a civil rights suit brought by a police officer in Tompkins County. (180)

   Similarly, prosecutors in Charleston, West Virginia, have access to police misconduct files but have only recently begun looking in these files. Charles Miller, a longtime federal prosecutor who joined the district attorney's office several years ago, said he "quickly saw that we really weren't doing anything with respect to Giglio" material in personnel files. (181) This realization prompted him, with the district attorney's blessing, to ask all law enforcement agencies in the county to "review the files of all their officers and notify us if there are any substantiated allegations of misconduct." (182) Not all his colleagues in the state do the same, he said.

   Some prosecutors have argued that, as a matter of doctrine, they are not required to learn of information in police personnel files. In Oregon, in 2013, one prosecutor after another said as much in hearings before the legislature. "[I]magine the resources that would be required to go into every one of those personnel files on some periodic basis--I don't know, monthly--to see if there had been some finding of dishonesty or some kind of actionable misconduct that some defense attorney might consider impeachable," said one district attorney. "It's staggering." (184) The first assistant to another district attorney added: "To ask prosecutors to be aware of the contents of their personnel files, to be aware of commendations and of demerits contained within those personnel files, is simply asking too much." (185) Still another district attorney insisted: "How far do we have to delve into witnesses' lives, victims' lives, you know, law enforcement's lives?" (186) The executive director of the Oregon District Attorneys Association wrote that such a search requirement was "a demand that the government pry into everyone's life to see if there is anything there." (187) Notwithstanding these statements, a task force of Oregon prosecutors and law enforcement leaders is now drafting guidelines on Brady's application to these files. (188)

   In many jurisdictions, personnel file material is considered more of a discovery matter than a Brady matter; courts discuss what a defendant must do to access the files or to trigger in camera review, but do not ask what the prosecu- tor must do to search the files. "There are relatively few cases involving the right of a defendant to have the prosecution review personnel files of law enforcement officers," explained the Delaware Supreme Court, after carrying out a nationwide survey of the case law. "Nevertheless, those decisions are almost unanimous in holding that in response to a specific motion, or upon subpoena duces tecum, the prosecution is required to review the identified personnel files for Brady material." (189) Unfortunately, instead of considering the prosecutor's duty toward these files, court opinions focus on what the defendant must do to gain direct access or to trigger in camera review. For example, a leading New York case holds that a defendant who wants access to the personnel files should at least advance "some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw." (190) Other courts have adopted similar threshold requirements for the personnel files, commonly requiring the defendant to establish "a factual basis for the requested files" before he can trigger in camera review or access the file himself. (191)

   The demotion of the personnel file issue from Brady's constitutional status to that of a mere discovery request has a number of problematic implications. The most important implication of this discovery approach is that it shifts from the prosecutor to the defendant the difficult burden of justifying why the file's confidentiality should be pierced. Under the discovery approach, the burden falls on the defendant to make a threshold showing about what the files contain before the court will even consider reviewing the files. The paradox is that the defendant must already know something about what is in the file before he can get help learning what is actually in the file. If he knows nothing about the file--as one might expect of such a confidential source--the defendant will get no help from the court in learning more. Were this treated as a Brady problem rather than a discovery problem, it would at least be the prosecutor's responsibility to grapple with this catch-22, and prosecutors have shown somewhat more capacity for doing so than defendants. (192)

   In sum, whether they think Brady is a gun control law, a problem not pressing enough--or too difficult--to solve, or a matter of mere discovery, these Group 4 jurisdictions fail to acknowledge Brady's application to police personnel files. In short, they treat the files as a Brady blind spot.

   3. THE BRADY BATTLE WITHIN THE PROSECUTION TEAM

   Beyond the access issues discussed above, there is another significant dynamic that impedes Brady's application to police misconduct: the conflict within the prosecution team. Even when prosecutors learn of police misconduct, police officers spend much energy pressuring them not to disclose it. This pressure is motivated by the fear that disclosure will lead to severe employment consequences for the officers. Police officers and their unions have used litigation, legislation, and informal political pressure to mount a campaign against Brady's application to their files. This conflict between prosecutors and police officers is easily overlooked, however, because prosecutors and police officers are widely seen as forming a cohesive prosecution team. Indeed, the Supreme Court's Brady case law is premised on the assumption that "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 Brady material known to any member of the prosecution team, including the police. (193) But the conflict within the prosecution team undermines that assumption and constrains the prosecutor's ability to fulfill his constitutional obligations.

   The battle over Brady's application to personnel files has also created divisions within police departments. Police officers suspect police management of using the Brady process to punish officers outside of the departments' official disciplinary systems and their attendant procedural protections. For officers, Brady has become an issue not just of defendants' due process rights but also of their own due process rights, as officers struggle to protect themselves from the uses and abuses of the Brady-cop designation. This aspect of due process helps explain why police officers and their advocates take such a hard line against Brady's application to these files. Indeed, the frequent failure to apply Brady to these personnel files cannot be understood without accounting for this conflict, which has riven the prosecution team.

1. The Prosecutor's (and the Police Chief's) Brady Power

   Brady's application to law enforcement personnel files is an issue very much on the minds of the police. "[O]ne of the most important issues facing law...