Procedural Rights. The Brady Rule

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2 The Factual Scenario Continues The local district attorney asks to review the internal affairs file, and later decides that one of the officers was not truthful. The DA places the officer on his agency s Brady/Giglio list. The police department decides that an officer who cannot testify cannot perform the essential functions of the job, and discharges the officer.

3 1963. In Brady v. Maryland, the Supreme Court found that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution In United States v. Giglio, the Court held the obligation to disclose information was not limited to purely exculpatory evidence, but also included potential impeachment evidence.

4 1985. In United States v. Bagely, the Court ruled that the obligation to disclose Brady information existed even in the absence of a request from a defendant for the material. As the Brady rule developed, courts reached inconsistent decisions as what sort of showing would have to be made by a defendant that material evidence could be found in police personnel files.

5 1991. The Ninth Circuit held in United States v. Henthorn that a defendant was not required to make any showing to trigger the Brady process. Instead, the Court found, the government is required to conduct its own examination of officer files, and must start the Brady process if it finds information favorable to the defense that meets the appropriate standard of materiality. Most other courts require that a defendant make a showing of materiality.

6 1996. The DOJ takes the bull by the horns, and requires all cooperating criminal justice agencies to disclose seven categories of information to the DOJ. 1. Any findings of misconduct that reflects upon the truthfulness or possible bias of the employee, including a finding or lack of candor during a criminal, civil, or administrative inquiry or proceeding; 2. Any past or pending criminal charge brought against the employee;

7 3. Any allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject of a pending investigation. 4. Prior findings by a judge that an agency employee has testified untruthfully, made a knowing false statement in writing, engaged in an unlawful search or seizure, illegally obtained a confession, or engaged in other misconduct;

8 5. Any misconduct finding or pending misconduct allegation that either casts a substantial doubt upon the accuracy of any evidence including witness testimony that the prosecutor intends to rely on to prove an element of any crime charged, or that might have a significant bearing on the admissibility of prosecution evidence. 6. Information that may be used to suggest that the agency employee is biased for or against a defendant.

9 7. Information that reflects that the agency employee s ability to perceive and recall truth is impaired. The reaction to the DOJ s policies some local DA officers began maintaining so-called Brady lists. Other DA offices have had a range of reactions, including completely ignoring Brady.

10 The reaction by law enforcement agencies to Brady lists has ranged from taking no action against an officer on a Brady list to terminating the officer, and everything in between. Officers have sued DAs for wrongfully placing them on Brady lists. To date, lawsuits for damages have been unsuccessful, barred by the notion of prosecutorial immunity.

11 Arbitrators are beginning to draw distinctions between kinds of untruthfulness. The general trend among arbitrators is that placement on a Brady list, absent clear proof of an officer s underlying dishonesty, is an insufficient basis to terminate an officer. City of Hutchinson (2015); City of Elma, Washington (2013); Wyandotte County/Kansas City, Kansas (2013); Franklin County Sheriff s Office (2010); County of Stanislaus (2010).

12 Even courts are reluctant to uphold discharges simply because an officer has been placed on a Brady list. Wetherington, Hubacz and Johnson.

13 What if this all happened in California or Maryland? SB 313 (2013): A punitive action, or denial of promotion on grounds other than merit, shall not be undertaken by any public agency against any public safety officer solely because that officer s name has been placed on a Brady list, or that the officer s name may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83. This section shall not prohibit a public agency from taking punitive action, denying promotion on grounds other than merit, or taking other personnel action against a public safety officer based on the underlying actions or omissions for which that officer s name was placed on a Brady list.

14 Removal from Brady list. Court grants request (opposed by prosecutor) to remove officers from Brady list after arbitrator determined there was no just cause for discipline for the officers underlying conduct, and Attorney General concluded that officers committed no crimes. Duchesne (2015).

15 Will the discharge of the Brady list officer be upheld or appeal?

16 Issue #12 If an arbitrator concludes that the officer was untruthful but that mitigating circumstances make a penalty less than termination appropriate, will the arbitrator s opinion be upheld? The public policy doctrine allows courts to overturn arbitrator s decisions that violate an explicit, well defined, and dominant public policy.

17 Developments From Around The Country: Despite the Brady rule, not against public policy to reinstate deputy sheriff who had been terminated for untruthfulness. The question is not whether the employee s conduct violates public policy, but rather whether the order of reinstatement violates a clearly-defined public policy.

18 Issue #12 In making this determination, we are mindful that the fact that an employee s misconduct implicates public policy does not require the arbitrator to defer to the employer s chosen form of discipline for such misconduct. Indeed, an arbitrator reasonably may consider circumstances such as the length of employment, previous instances of misconduct by the employee, and the circumstances and severity of the misconduct under review in determining the likelihood of future misconduct and whether discipline less severe than termination would constitute a sufficient punishment and deterrent. Town of Stratford v. AFSCME, Council 15, Local 407, 2014

19 Issue #13 What if this happened in California? SB 313 (2013): A punitive action, or denial of promotion on grounds other than merit, shall not be undertaken by any public agency against the public safety officer solely because that officer s name has been placed on a Brady list, or that the officer s name may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83. This section shall not prohibit a public agency from taking punitive action, denying promotion on grounds other than merit, or taking other personnel action against a public safety officer based on the underlying acts or omissions for which that officer s name was placed on a Brady list.

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