How Brady lists help prosecutors uncover police misconduct

ORLANDO, Florida. – When a police officer accused of lying or other misconduct prepares to testify in a criminal case, prosecutors have a constitutional duty to inform the defendant of the officer’s background.

A News 6 investigation found that prosecutors in Central Florida are keeping an eye on these potentially problematic witnesses, which varies from county to county.

Some prosecutors group the officers’ names together in what they call the “Brady List,” a reference to a landmark U.S. Supreme Court ruling that requires prosecutors to disclose exculpatory information.

While criminal justice reform advocates believe that such formal lists promote transparency and contribute to fair trials, some law enforcement officials fear that inclusion on “Brady” lists or similar lists could impair officers’ ability to do their jobs.

“It’s often an irrevocable scarlet letter that sticks with you for the rest of your career,” says Mike Scudiero, executive director of the Coastal Florida Police Benevolent Association.

Brady vs. Maryland

In 1963, the U.S. Supreme Court issued a landmark ruling in favor of murder defendant John Leo Brady. Brady had successfully argued that the state of Maryland had wrongfully withheld evidence showing that Brady’s accomplice had confessed to killing the victim.

“Brady vs. Maryland is one of the fundamental cases on which all modern criminal law is based,” said Steven Kramer, legal analyst at News 6. “The idea is that the prosecution should turn over any information that could help the defendant in court.”

In addition to disclosing exculpatory evidence that could prove the defendant’s innocence, “Brady” also requires prosecutors to disclose exculpatory information about state witnesses.

“If there is an officer at the time of arrest with a history of misconduct that could cast that officer in a bad light and affect the credibility of his testimony, that is something the defense is going to want,” Kramer said.

While not all information about a police officer’s past is admissible in court and will be heard by the jury, knowledge of past misconduct can help accused criminals prepare their defense, Kramer said.

“It could open up new avenues for the investigation,” Kramer told News 6. “It could open up new avenues for questioning during a witness’s deposition at trial.”

The requirement to identify and disclose officer misconduct could also impact law enforcement decisions.

“If (the state) sees an officer with a problematic past, they may not want to pursue the case or they may want to proceed differently at their discretion,” Kramer said.

Officials accused of misconduct remain on duty

When an officer is accused of falsehood or misconduct, law enforcement typically conducts an internal investigation to determine whether the crime occurred and, if so, how the officer should be punished.

In serious cases, officers may be fired. Others may resign before the internal investigation is complete, but in many cases officers remain on the job despite disciplinary actions ranging from verbal reprimands to unpaid suspensions.

An Orlando police officer caught on video calling citizens “savages” was allowed to keep his job after being suspended without pay for 80 hours.

In addition, fired officers can be reinstated if they challenge their termination in arbitration, as happened, for example, in the case of two Orlando police officers who were fired in 2015 for covering up an unauthorized chase.

Even arrested officers continued to work in the police force.

An off-duty Melbourne police officer was arrested on suspicion of drink-driving in 2019 after refusing to submit to a breathalyzer test. Prosecutors later concluded there was insufficient evidence to prove the officer’s guilt to a jury and the criminal case was dismissed. The officer was suspended without pay for a week for violating several Melbourne Police policies but was allowed to remain on duty, records show.

In the ninth district

To keep track of police officers and other expert witnesses whose backgrounds must be disclosed to defendants, many prosecutors across the country have created documents or electronic databases commonly known as Brady lists.

Several human rights organizations have expressed support for such records, which they believe should be available to the public. They argue that Brady lists help increase public trust in law enforcement.

“We must be able to have confidence in the truthfulness and impartiality of every official the prosecutor relies on to pursue a conviction,” the ACLU of Florida said.

Aramis Ayala, a former district attorney for the 9th Judicial District, which covers Orange and Osceola counties, compiled a Brady List that is still in use.

“It is imperative for our work that we have the utmost confidence in the witness testimony on which we build our cases,” Ayala said in July 2020.

Once the Ninth Circuit’s Brady List is complete, it will list witnesses who are barred from testifying in court because of their past and those who are still allowed to testify “with reservations,” a prosecutor’s spokesman said.

Under the Ninth Circuit’s policy, police officers and other experts could be added to the Brady List if the prosecutor receives information about, for example, dishonesty, criminal conduct, misconduct, abuse of authority, or evidence of religious or racial bias.

“A career killer”

While the decision of the US Supreme Court in Brady vs. Maryland Although prosecutors are required to disclose to the defendant information about witnesses that may lead to charges, many law enforcement officials fear that inclusion on Brady lists or similar records could potentially harm an officer’s livelihood.

“If there is a blanket policy that says, ‘We will not prosecute any case involving this particular officer,’ then that does the entire system a disservice and could ruin that officer’s career,” said Scudiero, the police union representative.

“It’s like an automatic warning signal. And for someone who’s trying to provide for their family, it becomes a real problem,” he added.

Scudiero said some allegations of misconduct, such as untruthfulness, are not always clear-cut and force law enforcement officials and prosecutors to make subjective judgments about an officer’s credibility.

“Some bosses have different standards than you or I for what defines ‘untruth,'” Scudiero said. “There are a lot more gray areas than the average person realizes.”

The headlines of the day in a few minutes with Your Florida daily newspaper: