The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday's post discussed the four types of Brady compliance regimes. Today's post focuses on a nastier, more personal aspect of the Brady issue: the fight within the prosecution team.
Though prosecutors and police officers are teammates in many respects, the application of Brady to police misconduct material has caused a deep division within the prosecution team. This conflict has pitted prosecutors against police officers and police management against the police rank-and-file.
The crux of the conflict is that police officers fear they will unfairly be labeled "Brady cops" and placed on prosecutors' Brady lists to great detriment to the officers' careers. As noted in yesterday's post, prosecutors compile these lists to systematically track police impeachment evidence. In jurisdictions that have Brady lists, a prosecutor will check all of his testifying officers against the list, and if any of them is on the list, the prosecutor will conduct further research to see whether the impeachment material has to be disclosed in the particular case.
What makes the Brady list and the Brady cop designation so damaging to officers, beyond the opprobrium of being called a liar, is the concrete effect it has on officers' careers. The fact that an officer appears on the Brady list will make him less attractive as a witness. Prosecutors may seek ways to present their cases without having to call Brady cops to the stand, and they may even refuse to prosecute cases in which a particular Brady cop has played a significant role.
Prosecutors' reluctance to use Brady cops on the witness stand in turn limits the type of police work the officers can do. An officer who can't be counted on to testify also can't be counted on to make arrests, investigate cases, or take part in any of a wide range of policing activities that might lead to the witness stand. Police department budgets have little room for the dead weight of officers who can't testify, and such officers may struggle to find work with new police agencies, if their Brady problems become known to prospective employers.
In light of the dire career consequences of putting an officer on the Brady list, one might think there would robust procedural protections to prevent an officer from being wrongly labeled a Brady cop. But the decision to put an officer on the Brady list is entirely up to the discretion of the prosecutor. The prosecutor can make the Brady designation based on rumor or shaky evidence, and he does not need to give the officer a chance to contest the Brady allegations on the front end or to appeal a negative Brady decision on the back end.
In addition, there are no sentencing guidelines, so to speak, when it comes to the Brady cop designation, so a prosecutor can consign an officer to the Brady list for life, even for a single, minor instance of dishonesty. Although some prosecutors' offices set up formal systems for officers to contest the Brady cop designation, the district attorney has complete discretion over whether to abide by the procedures he creates. There is no judicial review of the prosecutor's Brady cop decisions.
Such unchecked power in the hands of the prosecutor has caused much consternation among police officers. Unfortunately, prosecutors in some cases have abused this Brady power, using it to carry out personal vendettas against police officers. In a number of cases around the country, officers have alleged—rather convincingly—that prosecutors placed them on the Brady list for inappropriate reasons, including that the officers criticized the district attorney in the newspaper, supported the wrong candidate in the district attorney's race, investigated corruption among the prosecutor's employees, provided testimony that was truthful but unhelpful to the prosecution, complained to city officials about corruption in the police department, and failed to apologize to the prosecutor for some perceived slight.
In some cases, officers allege—again, with good reason—that the prosecutors misused the Brady power to help police management deal with difficult-to-fire officers. The claim is that police chiefs who don't want to go through all the red tape of having a police officer investigated, progressively disciplined and ultimately fired, according to departmental procedures, will instead ask the prosecutor to name the officer to the Brady list. At least in some jurisdictions, once the officer is on the list, he can be deemed unfit for duty, which makes it possible to fire him without going through the standard internal disciplinary procedures that many departments have.
Not surprisingly, police officers and police unions have pushed back hard against the use of these Brady lists. This pushback has involved litigation, legislation and political pressure. Officers have (unsuccessfully) sued prosecutors for defamation, breach of contract and tortious interference with contract for naming them to the Brady list.
In one case, for example, a Brady cop agreed to resign from his police agency if the agency would promise not to tell prospective employers about his Brady status. When the officer was on the verge of landing a new job, he learned that a prosecutor from his old jurisdiction was going to contact the new police department to warn of the officer's Brady history. The officer claimed this notification violated the terms of his severance agreement, and he brought suit. The court disagreed.
Other officers have sued, with slightly more success, on the grounds that the Brady designation was made in retaliation for a legally protected activity. Still others have sought injunctions against being placed on a Brady list. Despite the tenuous legal merits of these claims, the suits are significant because they show the depth of the animosity generated by these Brady lists.
The pushback against the prosecutors' use of these Brady lists has also taken a legislative turn, with police unions in California, Maryland and elsewhere pushing for employment protections that make it illegal to take any adverse employment action against an officer solely because the officer appears on the Brady list. According to the legislation, if the agency wants to discipline the officer for the underlying conduct, the agency has to do that through its internal disciplinary process. It cannot use the fact that the prosecutor is on the Brady list as grounds for an employment action. Beyond this legislation, police unions have also attempted to use their considerable sway in local elections to challenge prosecutors who aggressively use the Brady list.
The fear of the prosecutor's broad discretion in Brady matters helps explain why officers and police unions are so concerned about giving prosecutors access to the personnel files. Because officers have so little control over a prosecutor's Brady list decisions, their best bet to protect themselves is on the front end, by preventing prosecutors from learning about the impeachment material in the first place.
And the best way to do this is to seal off access to the personnel files. Thus, even in regimes where the prosecutor has legal access to the personnel files, he still faces fierce opposition from police officers and unions in his attempt to apply Brady to the personnel files. In the end, officers' efforts to protect what they see as their own due process rights have come at the expense of attempts to protect defendants' due process rights under Brady.