Don't give up on 'Brady'

|The Volokh Conspiracy |

Today's post addresses a few of the issues readers have raised this week, on- and off-line. I've paraphrased some of the salient comments and responded to them.

1. Comment: Who cares about Brady? Everyone knows it's a paper tiger.

Let's tackle this one first, since it's a frequently voiced concern. Yes, Brady relies on prosecutors' acting in a way that makes it harder for them to win cases. Yes, there's only a small chance Brady violations will ever be detected, and even then the remedy is just retrial. Yes, it's hard not to worry about the basic workability of Brady, even before all the police privacy complications are added into the mix. But these aren't reasons to give up on Brady or to stop worrying about how it's applied.

Brady is still one of the most powerful tools the Constitution provides to guarantee a fair trial. My posts this week have argued that there is something seriously wrong with a situation in which prosecutors and police officers can violate Brady so openly in the name of protecting police privacy. That Brady can be blocked by a citation to a privacy statute or personnel-file policy sends the dangerous message that society is okay with police privacy interests trumping defendants' constitutional rights. At the very least, Brady should have enough clout that people who want to violate it are forced to do so furtively.

2. Comment: Make police misconduct records public? No, no, keep them confidential, but let police departments and judges decide what to disclose?

On- and off-line, a number of commenters have struggled what the best policy prescription are for these files. Public access? Confidentiality? Some compromise position? I say, make the misconduct records publicly accessible. More pessimistic readers worry that making the records public would cause internal affairs investigators to put less information in their misconduct reports.

The second-order effect of making the records public is difficult to answer, but I'm optimistic that it would not result in a wholesale whitewashing of these reports. Having worked as a journalist in a public records state, I can say that there's still a lot of information in these public reports that could be devastating to an officer's credibility.

Of course, it could be that there would have been even more material in the reports if they were confidential. It's impossible to know because we can't effectively compare the quality of reports in open-records states with those in confidential-records states (because the confidential records are, well, confidential). My intuition is that police management would not declaw the internal affairs investigations, even if the records were going to be public, because police chiefs would still have an interest in weeding out bad apples from their organizations. To me, the bigger challenge is that it's not politically feasible to make the records public in states with strong police unions.

On the other end of the spectrum are people who seek to resolve the conflict between Brady and police privacy by splitting the baby. It's an understandable temptation, but I think it's ultimately doomed. Brady's Blind Spot discusses several varieties of compromise systems and explains why they won't work.

The most sophisticated type of these compromise systems employs a Rube Goldberg approach to ferreting out police misconduct evidence without ever giving the prosecutor access to the files. In such a system, the police department purports to search all the personnel files for anything that could be Brady material. This search results in a list of names, which the department discloses to the prosecutor, all the while revealing nothing to the prosecutor about the nature of the officer's Brady problem. The prosecutor then passes the names to the defense, if a named officer is slated to testify, then the defendant can, in turn, ask the court to review the personnel file for Brady material. The police department's notification that the officer has a potential Brady problem is supposed to be enough to provide good cause for the judge to look in the file.

This was the type of system endorsed by the California Supreme Court last year in People v. Superior Court (Johnson). The central conceit of this system is that the prosecutor can claim that Brady material is being identified and disclosed, while the police department can rightly say it has never shown the file to the prosecutor or anyone else without a court order.

But beware of systems like this that seek to outsource the prosecutor's Brady duty either to the police or the judiciary. The fatal flaw of these systems can be seen if one asks what happens when it is revealed, years after trial, that some piece of Brady material was not disclosed.

The answer is that the prosecutor is still on the hook for the Brady violation. The U.S. Supreme Court has made abundantly clear that there is no good-faith exception to Brady and, critically, that the prosecutor is the one responsible for disclosing Brady material, even when that material is known only to the police. Given that the prosecutor is on the hook for the Brady violation, it should be very troubling to set up a system where the prosecutor is powerless to make sure that this Brady duty is carried out.

Even if the prosecutor delegates the bulk of the Brady searching to the police department, he still must have the authority to access the personnel files himself to verify that the searching was correctly carried out. Perhaps if you're one of those people who trusts police bureaucrats and judges more than prosecutors, you'd prefer these compromise systems that bypass prosecutors. But that's a policy preference. It's not consistent with the Supreme Court's Brady doctrine, which places the Brady duty squarely on prosecutors.

3. Comment: We should focus on police shootings and other "real" police abuses that have cost lives, rather than diverting attention to legal errors that take place within the safe environs of a courtroom.

Granted, the effects of police shootings are more visible and immediate than the effects of Brady violations. I can see why some fear that this Brady discussion is a distraction from the larger criminal justice issues in need of reform. But reform is not an either/or proposition, and for someone who is strapped to a lethal-injection gurney because of suppressed Brady material, the violence is quite real. I'd like to go beyond this general rejoinder, however, to suggest two ways that Brady violations are connected to abusive policing practices on the streets.

First, if Brady applied more robustly to police misconduct records, it would have the positive effect of removing many troubled officers from the police force. After all, dishonesty is not the only offense that can land a cop on the Brady list. Racial and other types of bias can be Brady material, as can a history of excessive force. By enforcing Brady more muscularly, more troubled officers could be driven from careers in law enforcement, and forced to find jobs that do not require them to make life-and-death decision.

The other nexus between Brady and police violence is more subtle and speculative, but still worth mentioning. There is an interesting literature out there about itinerant police officers, that is, officers whose serial acts of misconduct cause them to move from department to department in an attempt to outrun their checkered pasts. The reason the officers can get away with this so easily is that there's no systematic effort to track problem officers from jurisdiction to jurisdiction and officers' disciplinary histories at prior agencies can be hard to dig up.

Unfortunately, these itinerant officers often find their way to the same small, underfunded police departments where relations between officers and citizens are already fraught. (This sorting dynamic appears to result from the fact that larger, more professional police departments often have better salaries and recruitment systems that give them the luxury of passing over potentially tarnished applicants.) In this way, the spotty application of Brady to police misconduct records may actually be channeling Brady cops to the localities that can least afford their malignant influence.

4. Comment: What's on the horizon for Brady's application to police misconduct records?

I suspect the next big debate about Brady and police misconduct will grow out of police departments' use of body cameras. Around the country, departments are increasingly mounting cameras on their officers in the hopes that the camera's unflinching eye will deter police misconduct and help punish it where it does occur. Some departments have even taken to analyzing the footage to identify and correct racial bias on the part of their officers.

But the laudable project of recording police interactions in the field is bound to create a formidable Brady problem. The countless hours of video footage—and any departmental analysis of that footage—could qualify as Brady material in the right case, to the extent it reveals dishonesty, bias, or excessive force. Unless this footage is going to be made readily accessible to defendants upon request, which seems very unlikely, prosecutors are going to be imputed knowledge of any favorable, material evidence the footage contains.

I have yet to hear, however, of any systematic efforts to review the body-camera footage for Brady purposes. This is essentially the personnel-file problem amped up for the digital age. And the fight over how Brady applies to this footage is just around the corner.

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