It’s as secretive as it is controversial.
California prosecutors keep a list of cops they say have credibility issues which, if brought up during court testimony, could damage a criminal case.
The existence of such compilations – called “Brady lists” – has largely been kept out of the public view, but has surfaced recently in the Capitol as the state’s powerful police unions took on law enforcement leaders over when and how such lists can be used in disciplinary decisions.
Prosecutors place officers on a Brady list for many reasons – including use of excessive force and falsifying reports – depending on the policies adopted at each county’s district attorney’s office.
“The public has a right to have a high degree of trust in their police departments and law enforcement officers,” said Sacramento County Sheriff Scott Jones. “If an officer gets on that list, theoretically they’ve violated that trust, which renders them less credible to take the stand.”
But union officials say off-duty issues, including DUI convictions or misdemeanor arrests that don’t lead to charges, have increasingly – and unfairly – landed officers on the list.
“It’s a growing list of conduct that is entirely at the discretion of prosecutors,” said Christopher Miller, a police labor attorney in Sacramento.
That’s one of the reasons officer unions are pushing Senate Bill 313, which would forbid law enforcement agencies from punishing cops – such as firing, reassigning or denying a promotion – solely for being placed on a Brady list. Sponsored by the pro-union law enforcement group Peace Officers Research Association of California, the bill easily cleared the Assembly last month and the Senate in May.
But, before being sent to the governor, it was pulled back for an amendment aimed at removing formal opposition from the state police chiefs and sheriffs associations. The bill’s critics, however, remained unswayed.
Both houses of the Legislature have until Friday to approve the amendments for the bill to be considered by Gov. Jerry Brown.
Kim Raney, president of the California Police Chiefs Association, said the group neither supports nor opposes the bill since “clarifying language was added.”
Raney said the bill could saddle police agencies with officers who are precluded from doing a basic function of their job – testifying against accused criminals.
“Most departments up and down the state don’t have the ability to put someone in a nonenforcement position for the rest of their career,” he said. “Unfortunately, they really can’t stay employed in the law enforcement profession.”
Brady lists are created and used by prosecutors to ensure they are meeting disclosure requirements under the 50-year-old U.S. Supreme Court case Brady v. Maryland, which says defendants have a right to evidence favorable to their case. That includes potentially credibility-challenging issues in an officer’s personnel file. Defining what creates a credibility issue is up to each district attorney’s office.
Stanislaus County District Attorney Birgit Fladager said in a 2009 Modesto Bee story about Brady lists that her office is flagged electronically when a blacklisted officer is entered as a potential witness, allowing prosecutors to notify defense attorneys.
“The ultimate decision is mine whether an officer may be designated to have information that will be disclosed. However, it depends on the circumstances since any prosecutor may make that determination in a particular case,” she said Wednesday in an email. “We don’t have a ‘list.’” The number fluctuates, she said.
A key point of contention in the debate at the Capitol is when an officer’s placement on a Brady list can be considered in the lengthy disciplinary process that follows any allegation of officer misconduct.
Bill proponents say under the current system, an officer may be suspended for 30 days after an internal investigation into misconduct, but subsequently fired when placed on the Brady list. Proponents argue that essentially puts employment decisions in the hands of the district attorney’s office.
Police union officials say the bill would require agencies to introduce placement on Brady lists into a disciplinary hearing only after a decision on guilt has been made, akin to introducing evidence at the sentencing phase of a criminal trial.
Ron Cottingham, president of the Peace Officers Research Association of California, said the goal is to keep agencies from punishing officers who land on a Brady list before an investigation proves whether the original allegation is legitimate.
Miller said he’s aware of cases in California in which an officer has been punished because the local district attorney had decided to stop filing any charges in cases involving that officer because of Brady concerns.
“There is no uniformity” among counties regarding Brady implementation, Cottingham said. “The uniformity we’re trying to bring ... (is that) if all you have is an unproven allegation, an accusation, and that’s all you have, you cannot terminate someone or discipline them just because they were placed on a Brady list.”
Opponents, however, say an offense and the consequences – including Brady issues – shouldn’t be separated. Jones, the Sacramento County sheriff, said he believes an officer’s placement on a Brady list is “extremely relevant” in determining the appropriate level of discipline.
“You can’t look at the conduct in a vacuum,” he said. “You have to look at the consequences.”
And if the consequence is that an officer would be regularly barred from testimony –as is true in the most severe cases – that should be considered early in the disciplinary process, Jones said. The bill would add a second step in that process, making it longer, more complicated and more costly, he said.
“Taxpayers are not getting a good return on their investment when you have an officer on the Brady list,” said Jones’ predecessor in Sacramento, John McGinness.
Jones, like others on both sides of the bill, agreed that inconsistency in how the state’s 58 counties handle Brady requirements is a problem. More standardization, he said, might address some issues of officers unfairly being put on Brady lists and then being punished for it.
He pointed to the Los Angeles County District Attorney’s Office as having the “gold standard” of Brady systems.
That office has a “Brady Compliance Unit” with a 26-page operations manual, posted on the Internet, which explains in detail the process of reviewing an officer for placement on the list. The unit mandates that a law enforcement agency’s internal investigation into an officer be completed before placement on the Brady list can be considered. It also allows for officers, in some cases, to appeal their placement.
Cottingham said his group has discussed sponsoring legislation that would address the lack of uniformity among counties, but that he and others are hesitant to tell district attorneys how to do their jobs.
“It’d be very difficult to put yourself in the position of promulgating to the DA how they will handle (Brady),” he said.
Instead, legislation like this year’s has focused on what police agencies can do with Brady information. Sen. Kevin de Leon, a Democrat from Los Angeles, is carrying the current bill and sponsored a similar version in 2011.
Assembly Democrat Luis Alejo of Salinas carried a version of the bill last year. Last month, he told fellow Assembly members SB 313 is needed to ensure that peace officers are fairly evaluated and afforded due process.
“This bill, SB 313, does not limit management’s ability to get rid of bad cops, it simply assures that good cops are not lost in the process,” Alejo said.
Torrance Democrat Al Muratsuchi, a prosecutor before being elected, supports the bill, which he said won’t hamstring law enforcement leaders, as some have argued.
“I think it’s fair enough that an officer be held responsible for the underlying acts or omissions and not the mere fact they are on the Brady list,” Muratsuchi said during brief floor debate.
San Francisco Democrat Tom Ammiano was one of three Assembly members to vote against the bill, which sailed through with bipartisan support.
“An officer being placed on the Brady list is not a random act,” Ammiano said on the floor. “There are few anomalies or mistakes. ... We should not limit the ability of law enforcement to weed out the few bad apples that make the ranks.”