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A Rising Trend of Tracking “Problem Officers”

On behalf of Cohn Lifland Pearlman Herrmann & Knopf LLP | Jan 30, 2020 |

Police officers play a vital role in the apprehension, including the initial investigation and arrest, of suspected criminals.  However, law enforcement is often further called upon to provide their insight via courtroom testimony.

Attorneys in the business of defending their clients charged with crimes have had to overcome obstacles with officers who, at best, lack credibility, and, at worst, engage in deceptive, corrupt, and outright abusive behavior.

In 1963, a Supreme Court decision, Brady v. Maryland, 373 U.S. 83 (1963), established that prosecutors are constitutionally obligated to share all information that would help the defense.  While the issue in Brady involved an exculpatory confession that was not disclosed to the defense, the all-important data also includes identifying officers with serious credibility issues.  As a result, some state and federal prosecutors have established what are known as “Brady lists,” or “exclusion lists.” 

Such a database includes officers engaged in various types of bad behavior, including, but not limited to:

  • Engaging in deception on police reports;
  • Committing excessive force;
  • Documented comments considered bigoted; and
  • Criminal activity, including DUI and domestic violence.

Sometimes these lists include the names of officers who are under investigation, though such a reference can be removed if the allegations are dismissed or found to have no foundation.  Other lists have been expanded to include lab technicians and others who might testify on the government’s behalf.

Brady violations are a serious issue.  An investigation conducted by USA Today revealed that thousands of people have faced criminal charges or gone to prison based in part on testimony from law enforcement officers deemed to have credibility problems by their bosses or by prosecutors.  The National Registry of Exonerations has tracked over 2,500 exonerations, with a vast majority of the wrongful convictions occurring because of Brady violations. 

Criminal justice advocates have lobbied prosecutors to not only document specific officers, but also limit their roles in some instances. They have also requested that prosecutors look at past cases to potentially identify patterns of misconduct that would possibly result in dropped charges or outright exonerations.  In Harris County, which includes Houston, Texas, the District Attorney’s office has already dismissed 27 cases, and is currently reviewing almost 14,000 cases handled by the Houston Police Department.

Still a Long Way to Go

Police unions have responded to Brady lists by filing lawsuits and lobbying to stop or, at best, limit their use by prosecutors.  Their main concern is the lack of anything resembling fair and balanced protocols and the potential of ruining reputations and ending careers of their fellow officers.

In spite of laws in several states that prevent this type of data from becoming public because it involves officers’ personal information and unredacted criminal investigative material, recent legal victories in Pennsylvania and California have breathed new life into the battle.  

However, while an increasing number of state and federal prosecutors are embracing these tools, there is still a long way for them to go.  USA Today’s investigation revealed that, out of 443 prosecutors’ offices surveyed, over 300 did not keep Brady lists.  Among these 300 were major cities such as Chicago and Little Rock.  Other lists were incomplete, with USA Today identifying identified at least 1,200 officers with proven histories of lying and other serious misconduct who had not been flagged by prosecutors. 

The experienced criminal defense attorneys at Cohn Lifland will take all possible measures to protect your constitutional rights, including fighting against Brady violations, if you find yourself facing criminal charges.