‘Brady’ lists help prosecutors track police misconduct
Some law enforcement concerned inclusion on lists could hurt officers’ careers
BREVARD COUNTY, Fla. – When a law enforcement officer who has been accused of untruthfulness or other misconduct is preparing to testify at a criminal trial, prosecutors have a constitutional duty to notify the defendant about the officer's background.
The way state attorneys in Central Florida keep track of those potentially problematic witnesses varies from circuit to circuit, a News 6 investigation found.
Some prosecutors compile the officers' names in what's commonly known as a "Brady" list, a reference to a pivotal U.S. Supreme Court decision requiring prosecutors to disclose exculpatory information.
While criminal justice reform advocates believe such formal lists promote transparency and help ensure fair trials, some law enforcement representatives worry that inclusion on "Brady" lists or similar records can hurt those officers' ability to perform their jobs.
“It is often an irrevocable scarlet letter that will stick with someone the rest of their career,” said Mike Scudiero, executive director of the Coastal Florida Police Benevolent Association.
Brady v. Maryland
In 1963, the U.S. Supreme Court issued a landmark decision in favor of John Leo Brady, an accused murderer who successfully argued that the State of Maryland improperly withheld evidence showing Brady’s accomplice had confessed to killing the victim.
“Brady v. Maryland is one of the foundational cases that all modern criminal law is based upon,” said News 6 legal analyst Steven Kramer. “The idea is that the prosecution is supposed to turn over any information that might help the defendant at trial.”
Besides disclosing exculpatory evidence that could show the defendant's innocence, "Brady" also requires prosecutors to share impeachable information about the state's witnesses, said Kramer.
“If you had an arresting officer with a history of misconduct that might portray that officer in a bad light and affect the credibility of his testimony, that’s something the defense will want,” Kramer said.
While not all information about a law enforcement officer's past will be admissible in court and heard by a jury, Kramer said knowledge about prior misconduct can help accused criminals prepare their defense.
“It might open up new avenues for investigation,” Kramer told News 6. “It might open up new avenues for lines of questioning at a deposition during pretrial discovery.”
The requirement to identify and disclose officers' misconduct could also alter prosecution decisions.
“If (the state) sees an officer who has a problematic history, maybe they don’t want to proceed with that case, or maybe they want to exercise their discretion and proceed a different way,” Kramer said.
Officers accused of misconduct remain on the job
When an officer is accused of untruthfulness or misconduct, law enforcement agencies typically conduct internal affairs investigations to determine whether the offense occurred, and if so, how the officer should be punished.
In severe cases, officers can be terminated. Others may choose to resign before the internal probe is complete but in many cases, officers remain employed after receiving discipline ranging from verbal reprimands to unpaid suspensions.
An Orlando police officer who was caught on video calling citizens “savages” was allowed to keep his job following an 80-hour suspension without pay.
In addition, officers who were fired may be reinstated after challenging their terminations during arbitration. That’s what happened to two Orlando police officers who were terminated for covering up an unauthorized vehicle chase in 2015.
Even officers who have been arrested have remained employed in law enforcement.
An off-duty Melbourne police officer was taken into custody on suspicion of drunk driving last summer after she refused to submit to an alcohol breath test. Prosecutors later determined the evidence was not strong enough to prove the officer’s guilt to a jury, so the criminal case was dismissed. The officer was suspended without pay for a week for violating several Melbourne Police Department policies but was allowed to remain on the force, records show.
Use of Brady lists vary in Central Florida
To keep track of law enforcement officers and other expert witnesses with backgrounds that must be disclosed to criminal defendants, many prosecutors nationwide 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 viewable by the public, arguing that Brady lists help ensure the community’s trust in law enforcement.
“We must be able to have confidence in the veracity and impartiality of every officer the prosecutor relies on in pursuing a conviction,” said the ACLU of Florida.
The state attorney for the 9th Judicial Circuit, which covers Orange and Osceola counties, is currently assembling a Brady list.
“It is imperative to our work that we have the utmost confidence in testimony upon which we build our cases,” State Attorney Aramis Ayala said in July as she announced the creation of a committee to oversee her office’s Brady list.
When complete, the 9th Circuit’s Brady list will identify recurring witnesses who will be prohibited from testifying in court due to their backgrounds, as well as those who will still be allowed to testify “with caution,” according to a state attorney spokesperson.
Under the 9th Circuit’s policy, law enforcement officers and other expert witnesses could be added to the Brady list if the state attorney receives information about dishonesty, criminal behavior, misconduct, abuse of authority, or indications of religious or racial bias, among other criteria.
In the 18th Judicial Circuit, which covers Seminole and Brevard counties, State Attorney Phil Archer does not maintain a formal Brady list.
Instead, his prosecutors place notations within an electronic records system indicating which specific witnesses require Brady-related disclosures, according to spokesman Todd Brown.
“Currently a policy is being developed that would serve as a guideline for law enforcement agencies to identify and report potential Brady issues, and govern the review, recording and disclosure requirements for prosecutors in our office,” Brown said.
Through a public records request, the state attorney for the 18th Circuit provided News 6 with the names of 75 law enforcement officers and expert witnesses who require disclosures under Brady.
Many of those officers have resigned or were terminated, News 6 found, including two former Winter Springs police officers who quit their jobs with the agency shortly before being arrested for perjury.
But some of the officers, such as the Melbourne police officer accused of drunk driving, remain employed and could potentially appear as witnesses in future criminal proceedings.
A few of the officers flagged by the 18th Circuit State Attorney’s Office for Brady disclosures were cleared of wrongdoing by their agencies, a News 6 investigation found.
“It was unfounded,” said a Sanford Police Department spokesperson when News 6 inquired about one of its officers who was accused of untruthfulness more than a decade ago. “We have also not experienced or been notified of any incident that would question (the officer’s) credibility or ability to fully carry out his job functions.”
The state attorney for the 5th Judicial Circuit, which includes Lake, Marion and Sumter counties, recently automated the way it tracks witnesses requiring Brady disclosures, according to a spokesperson for State Attorney Brad King.
“If a witness is identified as having a general Brady issue, the witness is flagged in our case tracking system,” Chief Deputy State Attorney Ric Ridgway said. “If that witness is entered as a witness in any future cases, the prosecutor is alerted that there is a Brady issue with the witness and requires a supervisor’s approval before allowing the person to be called as a witness.”
The only prosecutor in Central Florida who does not compile or maintain a Brady list or similar records to track potentially problematic witnesses is R.J. Larizza, the state attorney for the 7th Judicial Circuit, which includes Flagler and Volusia counties.
“Our office takes discovery obligations seriously and relies on the Florida Department of Law Enforcement’s Criminal Justice Standards and Training Commission Violations Report to assist in fulfilling those obligations,” said spokesman John Scott. “We also work with local law enforcement agencies on a case-by-case basis as incidents occur.”
“A career wrecker”
While the U.S. Supreme Court decision in Brady v. Maryland requires prosecutors to disclose impeachable information about witnesses to defendants, many law enforcement advocates worry that inclusion on Brady lists or similar records can be potentially harmful to an officer’s livelihood.
“When you have a blanket policy (stating) ‘We’re not going to prosecute any case this particular officer is involved in,’ that’s a disservice to the entire system and is also a potential career wrecker for this officer,” said Scudiero, the police union representative.
“It’s like an automatic red flag. And for someone trying to provide for their family, it becomes a real problem,” he added.
Scudiero said some misconduct allegations, such as untruthfulness, are not always straightforward, forcing law enforcement leaders and prosecutors to make subjective judgments about an officer’s credibility.
“Some chiefs have different standards than you or I on what defines ‘untruthful’,” said Scudiero. “There’s much more grey area to that than the average person realizes.”
While Scudiero prefers the 7th Circuit’s method of handling Brady matters on a case-by-case basis over the assembly of a formal Brady list, he believes Florida needs a statewide, uniform method of tracking officers requiring Brady disclosures.
“This really screams out for state legislation,” he said.
Arizona lawmakers are currently considering a bill that would allow officers to appeal their inclusion on Brady lists while prohibiting prosecutors from releasing the officers’ names under public records laws.
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