Wisconsin District Attorneys’ Police Brady Lists Often Secret, Incomplete, or Nonexistent
by Matt Clarke
Wisconsin Watch disclosed that its investigation into Wisconsin District Attorneys’ police Brady lists found that many had no Brady list while others had lists that appeared to be incomplete or refused to disclose the names on their lists.
Brady lists derive their name from the seminal case of Brady v. Maryland, 373 U.S. 83 (1963), in which the U.S. Supreme Court held that prosecutors have a duty to disclose evidence that is favorable to the defense. This includes exculpatory evidence and evidence that can be used to impeach a prosecution witness. United States v. Bagley, 473 U.S. 667 (1985). To comply with the witness impeachment aspect of the Brady disclosure requirement, many district attorneys (“DAs”) keep what is known as a Brady list, a list of law enforcement officers who have engaged in dishonest past behavior that could be used to impeach their credibility. Such behavior may include lying and other acts of dishonesty as well as criminal charges and convictions, but it is up to the prosecutor to determine whether the dishonesty rises to the level of Brady impeachment evidence. Prosecutors use the list to send relevant defense attorneys a “Brady letter” setting out the officers’ dishonesty when the officer is expected to testify.
As a part of its investigation, Wisconsin Watch filed records requests with district attorney’s offices in all of Wisconsin’s 72 counties and with the state Department of Justice (“DOJ”) seeking disclosure of the Brady lists. The key takeaway: public access to such information about dishonest law enforcement officers is inconsistent.
“We may have a unified court system, but we are 72 different criminal legal systems,” said Adam Plotkin, legislative liaison in the State Public Defender’s Office. “How it’s handled county by county can vary pretty dramatically.”
“It shouldn’t be the wild west,” said Jim Palmer, executive director of the Wisconsin Professional Police Association, the largest union in the state. “Some DAs may keep a list, some may not…. And whatever the procedure that a DA currently in office may utilize doesn’t mean that any of their successors are going to do it the same way.”
About a quarter (17) of the 72 DAs’ offices and the DOJ either denied the records request or responded that it did not keep track of law enforcement dishonesty. However, lists disclosed in 31 counties had a total of 360 names of law enforcement officers that prosecutors had flagged for “dishonesty or breaking the law in ways that could undermine their credibility in court.” Another 23 DAs said they had no names on file, but some of them promised to contact local agencies to update their lists.
The list released by Milwaukee County included the names of 150 former officers, who had been prosecuted for crimes that all but two were convicted of. It excluded other officers who had been investigated for dishonesty and other issues but not charged with a crime, citing case law that exempts prosecutorial files from public disclosure.
The investigation found that Wisconsin’s example of inconsistent transparency standards is common nationwide. Only Colorado has a law requiring Brady lists and explaining what they should include. “The law establishes a six-member oversight committee that includes a majority appointed by police groups and prosecutors who are empowered to decertify officers for ‘untruthfulness.’ It also mandated that officers flagged for dishonesty be tracked in the public-facing database.” It includes a requirement that officers be notified before being placed on a list and provides a process for them to petition for removal. Such openness prevents officers let go from one jurisdiction for dishonesty from easily getting hired at another and provides due process for those placed on a list. Other states would do well to follow Colorado’s example.
Source: wisconsinwatch.org
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