Hundreds Of Law Enforcement Agencies Are Still Allowing Bad Cops To Provide Testimony
from the going-dark dept
Thanks to untrustworthy cops, people's lives are being destroyed. It's more than just bogus stops and bogus arrests. It's more than faulty field tests that tell cops innocuous substances are illegal drugs. It's more than a judicial system that's tilted against criminal defendants, even as the system claims we're all innocent until proven guilty.
One of the reasons the system is tilted against defendants is prosecutors' refusal to turn over exculpatory evidence. More than one judge has noted the "epidemic of Brady violations." Named after the 1963 Brady v. Maryland Supreme Court decision, Brady evidence is anything that might help the defense argue against the government's case. There's an obligation placed on prosecutors, far too many of which feel is optional. Nearly 100% of criminal prosecutions end in plea deals, giving prosecutors a convenient way of closing cases before they even need to consider their evidentiary obligations.
Brady lists are lists of officers considered too untrustworthy to testify in court. This could be because they've been caught lying on the stand. This could be because of a lengthy history of misconduct. Law enforcement agencies rarely fire bad cops. But, occasionally, they'll inform prosecutors they don't want these officers testifying because of their internal affairs rap sheets.
This information should be handed over to defendants, but it very rarely is. The easiest way to dodge this obligation is to not create the lists in the first place. If you don't know who's a bad cop, you can't possibly inform the defense that your key witness is impeachable. Win-win for the government. An investigation by USA Today shows the creation and maintenance of Brady lists appears to be another thing law enforcement considers to be optional.
At least 300 prosecutors’ offices across the nation are not taking steps necessary to comply with the Supreme Court mandates. These places do not have a list tracking dishonest or otherwise untrustworthy officers. They include big cities such as Chicago and Little Rock and smaller communities such as Jackson County, Minnesota, and Columbia County, Pennsylvania.
Others make as minimal effort as possible, following the letter of the Supreme Court ruling, but not the spirit. Records are incomplete, perhaps deliberately so.
USA TODAY identified at least 1,200 officers with proven histories of lying and other serious misconduct who had not been flagged by prosecutors. Of those officers, 261 were specifically disciplined for dishonesty on the job.
This failure to uphold their mandated obligations isn't some victimless paperwork crime. People are going to jail for years because prosecutors and police agencies refuse to hand over this information to criminal defendants. Bad cops take the stand and get people locked up even when their past dishonesty should make them no more trustworthy than the average street thug.
Because there are hundreds of dishonest cops in the nation, thousands of criminal prosecutions are tainted by testimony provided by officers who never should have been allowed to take the stand. When lists are compiled, it generally takes a court order to get this information to defendants. It's almost impossible to get these lists released to the general public, even though lists of untrustworthy cops is very definitely of public interest.
In one case detailed in USA Today's report, a man was locked up for 11 years for driving under the influence. It was never disclosed to him or the court the officer who arrested him had been disciplined for manipulating DWI stops to ensure he was called on to testify as often as possible, ensuring a steady flow of overtime. The only evidence against the man was the officer's word: there was no roadside test, no breathalyzer, and no blood test. It all came down to a bad cop saying someone was drunk. For that, the man lost 11 years of his life.
This is another "Brady epidemic." This horrific stat was generated by a single law enforcement agency.
USA TODAY reviewed discipline files for Little Rock police officers going back 15 years, then compared them with court records. The analysis found officers who the department determined lied or committed crimes were witnesses in at least 4,000 cases.
If this investigation shows anything, it shows hardly anyone on the "rule of law" side actually wants to follow rules or laws. Investigations like these will help apply pressure to prosecutors and police departments, but these are the most entrenched of (self) interests and it won't be easy to change the culture that has allowed this abuse of the judicial system to become so prevalent.
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Filed Under: brady list, evidence, police, testimony
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'We only employ the finest of liars and crooks.'
USA TODAY reviewed discipline files for Little Rock police officers going back 15 years, then compared them with court records. The analysis found officers who the department determined lied or committed crimes were witnesses in at least 4,000 cases.
The only way to get even a fraction of that number is if it is well known within the department that lies and/or crimes are completely acceptable for the police to engage in. You do not hit four thousand cases that even the department is willing to acknowledge without those working there feeling completely and utterly comfortable lying through their teeth and/or breaking laws left and right.
At this point the default assumption when police give testimony in court should be that they are lying unless they can provide solid, corroborating evidence to support anything they say, and if that's enough to tank a case then too damn bad, they have shown themselves to be utterly untrustworthy and dishonest in the extreme.
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Re: 'We only employ the finest of liars and crooks.'
That's 4,000 cases where they just provided testimony, not 4,000 cases where they were proven to have lied. If the cops are still working cases, obviously they're going to be called to give testimony.
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Re: Re: 'We only employ the finest of liars and crooks.'
If the cops are still working cases...
Which they shouldn't be, as they should no longer be employed.
obviously they're going to be called to give testimony.
Because who makes a better witness than a known liar and/or person with questionable/criminal record?
You say they are 'obviously' going to be called in, whereas I'd argue that someone bad enough to be put on a Brady list should be the last person ever called in to give testimony, as they have demonstrated they cannot be trusted.
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Re: Re: Re: 'We only employ the finest of liars and crooks.'
You have a hard time admitting you were wrong about something, huh? You saw a number and decided what it meant without actually reading the whole article, and you just can't admit it and let it go now.
You know police also give testimony on behalf of victims and defendants? If a cop's testimony would exonerate someone, should they still not be allowed to testify if that cop is on a Brady list? Should their testimony still be considered untrustworthy in that case and totally disregarded?
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Re: Re: Re: Re: 'We only employ the finest of liars and crooks.'
You have a hard time admitting you were wrong about something, huh?
When people fail to actually give me a reason to admit to being wrong on something, very much so.
You know police also give testimony on behalf of victims and defendants? If a cop's testimony would exonerate someone, should they still not be allowed to testify if that cop is on a Brady list? Should their testimony still be considered untrustworthy in that case and totally disregarded?
Are they on the list due to a history of dishonesty and/or willingness to lie in court? If so, yes to all of the above. What side they're on in court does not change whether or not they've been found to be dishonest and therefore not to be trusted, because if they're willing to lie to convict an innocent person what guarantee do you have that they won't be willing to lie to get a guilty person off the hook?
Could this result in an actually innocent person being found guilty because the person with the exonerating evidence is a known liar? Unfortunately so. How do you solve that? You fire them before it comes up and make it clear that lying in court or other crimes that would bring your trustworthiness(important both in court and when dealing with the public) into question is a great way to get the boot and have to find another job.
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Re: Re: Re: Re: Re: 'We only employ the finest of liars and croo
You are, at minimum, wrong about what that number of cases represents. Your responses now lead me to think it's intentional.
If we're going to start firing cops for being placed on a Brady list, membership on the list would have to be managed in a way that is transparent and involves due-process, which they currently very much aren't, or those firings won't survive being challenged by the unions and LEO associations.
Or were you imagining a world where the police aren't protected by generous labor contracts, strong unions, and an endless parade of politicians that love to look "tough on crime"?
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Re: Re: Re: Re: Re: Re: 'We only employ the finest of liars and
You are, at minimum, wrong about what that number of cases represents. Your responses now lead me to think it's intentional.
No, I'm just using a different standard than you are, in that having seen just how insanely difficult it is for a cop to face any sort of punishment my default assumption is that if one of them finds themselves on a list for known liars/people with questionable history they have more than earned it, and as such have no business giving testimony in court.
As such while some of those 4,000 cases might have involved cops who were innocent and therefore didn't deserve to be on the list, barring solid evidence to the contrary my assumption is that most of them earned their place on the list, and therefore should not have been involved in giving testimony in a setting where it could have serious impact on other people.
If we're going to start firing cops for being placed on a Brady list, membership on the list would have to be managed in a way that is transparent and involves due-process, which they currently very much aren't, or those firings won't survive being challenged by the unions and LEO associations.
Or were you imagining a world where the police aren't protected by generous labor contracts, strong unions, and an endless parade of politicians that love to look "tough on crime"?
As I have noted multiple times in this comment section the list should be based upon evidence, and innocent people wrongly placed on it should have grounds to object and go to court to get it reversed if need be. If that's not how the system is set up then that's a problem that needs to be addressed, but it's because I'm fully aware of how police are shielded from repercussions and given silk-glove treatment that I expect that for the overwhelming majority of police put on Brady lists they more than earned it.
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Re: Re: Re: Re: Re: Re: Re: 'We only employ the finest of liars
Up til now, I've been staying out of this thread (and staying in the thread below), but I'm going to interject here to call your attention to the two paragraphs from the USA Today article immediately preceding the part you quoted up above in your opening post:
Empasis added. The part you quoted begins “USA TODAY reviewed…”.
Now, a few paragraphs later, the article does go on to say:
But neither that paragraph, nor the next one, which directly quotes Pulaski County Chief Deputy Prosecutor John Johnson's own words, makes explicit mention of any list.
And that second paragraph that I blockquoted, and highlighted, explicitly denies knowledge about a list in Little Rock.
So, when you start saying:
Well, I'm just thinking, wait!, what list do we have in the context of the 4,000 cases? Isn't USA Today saying that there ought to be a Brady list in Little Rock, but there isn't one there?
When you talk about “the list” in the context of the 4,000 cases, what are you referring to? USA Today's list? It's their analysis — their list?
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Re: Re: Re: Re: Re: Re: Re: Re: 'We only employ the finest of li
A fair point, looks like a bit of confusion on my part on specifics, though the argument in general should hold. In the case of Little Rock it would be a list they should have but can't be bothered with(to be fair it would be rather difficult for the prosecutors to make such a list if the local police don't tell them anything along those lines of what happens outside of court, though lies in court should be trackable if discovered), a list that ideally would have prevented those that have been found to be untrustworthy from giving testimony.
On a more general scale it would basically the same, the lists of those that have been found to be untrustworthy for one reason or another, compiled by the prosecutors/courts/police departments, though reading the article it looks like it's only a minority that actually bother with that(which is fair, I mean it's not like it's likely to result in any of them seeing the inside of a cell because it wasn't disclosed that a cop giving testimony against them couldn't be trusted).
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Re: 'We only employ the finest of liars and crooks.'
Dishonestly is now a job prerequisite having been given the green light that its ok if cops lie by a recent ruling.
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Really, if you think about it, a law enforcement agency's Brady list should be empty. Because any officer whose behavior is bad enough to get on that list should be fired.
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Re:
In his 2015 Stanford Law Review article, “Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team”, Jonathan Abel points out (on p.779 / p.37 in PDF) —
And from the following page —
Now, Abel does go on to argue, in his conclusion (p.807 / p.65 in PDF) —
But step back a bit, and at least listen to the officers' position. At least listen to it. Even if you're a firm believer in strictly at-will employment for law enforcement officers, then it's still fair to ask whether the firing decision should be made by a sheriff or police chief — or by a prosecutors' office.
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'Help, help, I'm being oppressed!'
Now that is a strong contender for funniest of the week.
But step back a bit, and at least listen to the officers' position. At least listen to it.
Sure, I mean who doesn't have plenty of time to waste and a burning love of being lied to and/or indulging someone's persecution complex?
Even if you're a firm believer in strictly at-will employment for law enforcement officers, then it's still fair to ask whether the firing decision should be made by a sheriff or police chief — or by a prosecutors' office.
Prosecutors aren't saying 'fire that person', they're saying 'there is evidence showing that that person is dishonest and willing to lie, and as such they cannot be trusted to be honest in court given a lie there could easily cost a person years of their life.'
If, upon being presented with evidence that one of their officers has such a penchant for dishonesty that even the courts are willing to point it out the head of a police/sheriff's department makes the (correct) decision to fire them that's on them in part, but mostly on the liar who now has to find a different job.
On the other hand if the all-too-rare 'good cop' finds themselves put on the list unjustly as punishment for, I dunno, not being corrupt enough, then I imagine they can contest that in court just like everyone else wrongfully accused gets to, however as I suspect that such instances are vastly lower than those that are put on the list for damn good reasons yet face no other consequences than that, I'm thinking that deserves the larger amount of attention.
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Re: 'Help, help, I'm being oppressed!'
You're not responding to the argument. Recall the original poster's assertion.
With original emphasis on “fired”.
That got enough upvotes for a lightbulb. But, now you want to just move the goalposts.
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Re: Re: 'Help, help, I'm being oppressed!'
I'll concede that the assertion you're making is fair. It wouldn't surprise me if some prosecutors and police departments used Brady lists to prevent good cops from blowing the whistle.
That said, as That One Guy mentioned, given how most cops will willingly overlook bad behavior from their colleagues the odds of "good cops" existing, never mind making the list, don't seem to be high.
And that last complaint about someone else's comment getting more likes than yours is peak whining, seriously.
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Re: Re: 'Help, help, I'm being oppressed!'
But, now you want to just move the goalposts.
Not in the slightest, if anything I was agreeing with and expounding upon what they said.
The prosecutors might be the ones who put them on the list, but the ultimate decision as to whether or not to fire them is still in the hands of the head of the police/sheriff department. If the department head finds the evidence credible then they most certainly should fire them, and if not they can keep them employed and try to fight the accusations just like anyone else falsely accused.
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Re: 'Help, help, I'm being oppressed!'
Prosectors have a duty to disclose under Brady and Giglio, that I argue includes the duty to disclose information to a defendant which, although having a tendency to impeach, simply does not support termination.
Do you want to collapse those two levels into one standard?
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Re: Re: 'Help, help, I'm being oppressed!'
If I read that correctly Giglio would simply be telling the defense/jury 'our witness has a bias that might impact what/how they say it', which isn't necessarily a finding of dishonesty, merely noting bias that could impact credibility and something to keep in mind.
As that would be notably different than 'this witness has a recorded history of lying in court/other activity which would affect their credibility' keeping those two separate would make sense, so no.
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Giglio [was Re: Re: Re: 'Help, help, I'm being oppressed!']
US v Bagley (1985) cites Giglio as standing for:
Also see Abel's article, note 23 (p.749 / p.7 in PDF)
This is fairly common nomenclature.
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Re: Re: Re: 'Help, help, I'm being oppressed!'
I drafted that comment badly, and I'm afraid I'm in a hurry again — won't be back for a few hours. But, by two levels, I was distinguishing between:
Material required to be furnished to a defendant under Brady / Giglio
One of the well-known problems with Brady is that some, although not all prosecutors, take the position that they're only really required to disclose material, if in their own opinion, a failure to disclose will result in an appellate remand for new trial.
You want to add on to that operational viewpoint, that prosecutors are only required to disclose impeachment material if it's going to, or already has, resulted in an officer's termination?
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Re: Re: Re: Re: 'Help, help, I'm being oppressed!'
This is fairly common nomenclature.
From a person in the legal field perhaps, but I'm coming at it from the layperson's perspective, and as such while I've run across Brady lists/evidence this is the first time I've run across Giglio.
You want to add on to that operational viewpoint, that prosecutors are only required to disclose impeachment material if it's going to, or already has, resulted in an officer's termination?
Ah, I think I see where you're going with that now. In that case no, I'd probably keep the two separate, as while I personally feel that if an officer has been found to be untrustworthy(especially if that involves dishonesty in court) they should be removed from police work(for various reasons ranging from holding them to a higher standard to it being counter-productive for community relations) ultimately what counts for employment is up to the head of their department/the law in that particular area. If that standard isn't enough for them to terminate then that's on them, though a history of dishonesty in court should still be provided to the defense under Brady as it could impact their case.
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Re: 'Help, help, I'm being oppressed!'
That evidence, then, needs to be evaluated. If there are good reasons a court can't trust a cop, they shouldn't be a cop; if not, they shouldn't be on that list.
Whether it's their "chosen occupation" has nothing to do with it. I mean, I can choose to be President of the United States—the legal immunity could come in handy—but it's not going to happen.
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An officer who lies enough to be on a Brady list is an officer who can’t blame anyone but themselves for that. And any officer who hates being on a Brady list can either stop lying or leave the job.
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Re:
California's Brady lists are relatively accessible. Officers placed on any of them can no longer work as law enforcement in the state. Roughly a third leave law enforcement, while 2 thirds continue to work as police in other states, half of those in Texas. The lists are as available to Texans, but, shockingly, few Texas agencies thoroughly background check new hires for law enforcement jobs.
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California [was Re: Re: ]
You're saying that California has completely changed in the past few months? Turned over a new leaf, as it were?
That would be following the August 26, 2019 California Supreme Court decision in Association for LA Deputy Sheriffs
Please tell us more about what's going on in California lately.
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California [was Re: Re: ]
You're saying that in California, when an officer is placed on a Brady list, what happens to that police officer?
No doubt you're familiar with California Government Code § 3305.5
Note:
That's just a matter of public record.
So, in California, when an officer is placed on a Brady list, what happens to that police officer? Can they continue to work as law enforcement in the state?
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Brady list standards [was Re: ]
From the USA Today article:
(Emphasis.)
In the Ninth Circuit, the 2013 case of US v Olsen held:
(Emphasis added; following See, e.g. omitted.)
So, the prosecution's Brady / Giglio obligation to disclose to a defendant may be triggered even before a finding against an officer is sustained.
Going back to your comment
At least you're not arguing that landing on a Brady list supports automatic summary firing — like the AC up above there — you're not knee-jerk about this. You're simply arguing that as soon as an investigation is launched, immediately, instanter, the officer ought to …what?
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Re: Brady list standards [was Re: ]
AC up above, here. In all your replies, you've given some good points about some of the issues with the Brady list. For example, I was unaware that there did not exist a standard for placement on the list, nor in my initial comment did I consider that an officer might be placed on the list abusively. My underlying assumption was that if you got on the list, your behavior was legitimately bad enough to merit placement on the list.
However, you also did not interpret my position correctly. My position is not "if you're on the list you should be fired," as you suggest. My position is, "if you're such a terrible cop that your behavior would put you on the list, you should be fired." It's a subtle difference, but I believe my original phrasing targets the bad behavior that would put one on the list, not one's actual presence on the list.
Additionally, the list should not be abused (and if it is, there should be recourse to challenge the placement as That One Guy suggests), so there should be no officers on the list illegitimately. Therefore, my initial statement that an agency's Brady list should be empty remains valid - no good* officers on it because it's not being abused, and no bad officers on it because they were all fired for cause.
*It's been argued elsewhere that a "good" cop that doesn't do anything to remove bad cops is in fact not "good" at all, but I'm not going to go into that here.
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Re: Re: Brady list standards [was Re: ]
From the USA Today article
My position is that listing an officer is simply part of a procedure by which the prosecution team fulfills its duty to disclose under Brady / Giglio.
Further, that impeachment material not rising up over a reasonable threshold needed for an officers' termination, must nevertheless still be disclosed to the defense under controlling Supreme Court precedent construing the Fourteenth Amendment's due process clause.
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Re: Re: Re: Brady list standards [was Re: ]
There are many articles on TechDirt that illustrate how egregious officer behavior has to be in order to get disciplinary action. Knowing this, and perhaps I'm overly cynical, it makes me think that an officer must be staggeringly untrustworthy before the prosecution would consider listing them. (Again, assuming that the listing would be legitimately earned)
Fair point, and no disagreement here. Restating the above, however, cynical me says that if you're bad enough that the government has to disclose that it's aware that you're bad, you've already crossed the termination threshold.
If I was being idealistic, I'd agree with you. I've just seen too many cases of bad behavior getting swept under the rug or dismissed due to "qualified immunity" that my idealism in this area is pretty much gone.
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Re:
Fired is nothing to them right now thanks to the FOP.
What it should be, is a formality in the incarceration process. Deliberate and wanton perjury with intent to violate the victim's right under color of authority MUST be treated as the grievous crime it is, not only for what it does to innocents but also for what it does to the trust required by a system of government to continue to operate unbeheaded.
The current justice system, corrupt from top to bottom, will never allow such changes without a fight - and they're more than willing to get violent over it.
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Re:
Brady lists include any potential witness, not just police. Crazy people who've witnessed literally incredible numbers of murders and informants seeking payment also end up flagged.
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Re:
Its all in a day's work. Throw as much crap against the wall to see what sticks. Some of the crap on the floor just gets swept under the carpet.
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If only we didn't have 2 types of justice in this country.
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One day. One day I'll wake to news of LEOs being proactively attacked...
and the first Butlerian jihad
and a second french revolution
and probably a second civil war..
and it'll all be a dream.
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Re:
Asserts facts not in evidence.
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Re: Re:
If you don't believe we have two types of justice in this country, you clearly must be law enforcement or independently wealthy. The rest of the nation has to fight an uphill battle against a system literally rigged against them.
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Law enforcement agencies?
Law, enforcement. Agencies and individuals that enforce the law.
...America has those?
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Re:
We "have them" in the same way the Nationalsozialistische Deutsche Arbeiterpartei had 'socialism'.
That is to say, none at all but some jackasses put it in the name to sell what we do have better.
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Yes, the prosecutor gets to present it to the jury anyway, but having his witness discredited moments later isn't going to help his case much.
The bigger issue is prosecutors who make a practice of withholding exculpatory information during discovery. [the law says they must share it with the defense] Not only does the practice rarely result in official censure when discovered, even the various Bar associations don't seem to consider it to be noteworthy.
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11 Years for DUI??
Let's face it being a cop (either side of the pond) provides a certain power and generally attracts people that probably should not be given it. Lying and cheating goes with the territory and added to the us vs. them attitude means nothing good will come of it as they will have the support of the cop community.
However, 11 years in jail for DUI when there was no victim and only the testimony of one cop? That goes way beyond cruel and unusual punishment! To me this was the most startling part of the story.
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Re: 11 Years for DUI??
Unless there couldn't have been a victim for some reason (eg. them being alone on a closed track), why does that matter? The driver just got lucky.
Quality of evidence should affect the chance of conviction but not the severity of the punishment. There's reasonable doubt or there isn't.
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Re: Re: 11 Years for DUI??
Nonsense. Punishment should be administered for ACTUAL harm caused, not for POTENTIAL harm. Maybe the driver didn't get "lucky"; maybe he was employing the necessary skill to avoid collisions, though his blood alcohol content was [whatever].
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Re: Re: Re: 11 Years for DUI??
Sorry, JDL, that's wrong, mate. If that were the case, attempted __ would not be prosecutable.
DUI is dangerous, and such drivers should be off the road, period. Don't drink (or otherwise impair your judgement) and drive.
That said, 11 years when no harm was done is way past excessive. Over here, you get a fine and remedial course, which you have to pay for. That is sufficient. If you actually kill or cause life-changing injuries, however, the punishment should fit the crime. 10 years minimum for life-changing injuries, 20 to life for killing someone. I'm sick of seeing dangerous drivers who actually maim and kill people let off with light sentences. One guy I know who actually killed someone and went to jail for a couple of years went straight back to drink-driving after he was released. Jailing them for longer keeps the public safe while they're inside.
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If there is no list, they're all on the list
It seems a logical flow that results in the pressure to maintain the list. If the list is not credible, all the officers are on the list. So none of them can testify. At all.
Maybe you ought to have a list. :3
Skylos
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