Are prosecutors and departments weaponizing Brady lists against targeted officers?
Some officers, lawyers and cop moms think they are
I’ve written about the implications of the U.S. Supreme Court cases of Brady v. Maryland (1963) and Giglio v. U.S. (1972) for cops and their careers. Basically, these cases require prosecutors, and by extension police departments, to disclose evidence about officers’ credibility that could be used to impeach them if they testified.
This has caused some prosecutors’ offices to establish “Brady lists” – names of officers whose honesty has been called into question. Defense attorneys are notified if an officer is on the list. If they request discovery of what landed the officer on the list, the prosecutor can turn it over or request a ruling from a judge about whether it must be turned over. If it is turned over, the prosecutor can still seek a ruling from the judge that the evidence is inadmissible because it isn’t relevant or, even if relevant, would result in unfair prejudice, confusion of the issues, or a waste of time. (Evidence Rule 403)
I’ve also written about the conflicts these lists can cause among officers, prosecutors and departments. In response to these articles, I’ve been increasingly contacted by officers, lawyers representing them, and even the mother of a 15-year veteran “with a brilliant record and awards,” who believe the officer’s department, prosecuting attorney, or both have “weaponized” a Brady listing to get rid of an officer.
The way that could work is, once an officer is Brady listed, the prosecutor’s office could decide not to accept any cases in which the officer is a witness, thereby rendering the officer unable to perform an essential job function – testifying – resulting in termination. The kicker is, there are no uniform standards for being Brady listed, no requirement the officer receives a notice and no right to appeal. Consider the following cases.
Officer struggling to clear his name
Officer Travis Hamilton learned he was Brady listed in April 2019 when a news reporter asked him for an interview about being on the County Attorney’s Brady/Giglio list. Unaware such a list existed, Officer Hamilton declined the interview. When he subsequently contacted the County Attorney’s office, he was told there were no policies for being placed on the list nor could he appeal.
In response to his public records request, Hamilton was provided a list with 11 officers’ names, including his own, but no explanation of why he was on the list. He emailed the County Attorney requesting to meet regarding why he was on the list but never got a response. He tried contacting the other officers, some of whom also didn’t know they were listed.
Seven months later, Hamilton submitted a new records request asking for an updated copy of the Brady/Giglio list and attached a copy of the list he was originally given. He was told there was no such list.
Because of the news article, Hamilton was asked to resign, which he did. He hasn’t been able to get a law enforcement job since. He has nearly 20 years of experience. He was told by one chief that he was the most qualified applicant, but the chief wouldn’t hire him because of the Brady listing.
Travis Hamilton urged me to use his real name. He suspects the County Attorney’s Office used an incident underlying a suspension he received in 2003 to Brady list him. He would welcome a full hearing on the matter. He now has a job in security that pays more and involves less stress than his police work. But he wants to clear his name – and help other officers avoid his dilemma. He is contacting similarly situated officers and working with his state legislators to try to get some due process added to the Brady/Giglio requirements.
One of the officers Hamilton reached out to was Lansing Police Chief Daryl Green.
Brady list doesn’t withstand public scrutiny
The Ingham County Prosecutor’s Office Brady list made news in July 2020 when a Lansing newspaper reported Police Chief Daryl Green was on the list. The Chief fought back. He said the listing was related to an incident that occurred more than 20 years ago when he didn’t file a use-of-force report after helping medical personnel hold someone on a gurney. The patient complained. No excessive force was found but Green’s supervisor disagreed with him on the definition of “use of force” and not filling out a form.
Green said he “was placed on the Ingham County Brady list without any notice, due process or opportunity to explain my side of the story or argue an appeal” at a time when he and other minority officers were raising concerns about racism within the PD.
Chief Green’s public stand led to more investigation and reporting. He was removed from the list and the current County Prosecutor developed a policy that would provide officers some due process before being Brady listed.
Another Brady listed officer sues
Travis Hamilton also told me about former police Sergeant Tonina Lamanna who is suing the City of Dayton and its PD for being placed on a Brady list with no notice or opportunity to contest the listing, in violation of her right to due process.
The city says Lamanna was fired after she allegedly lied about accessing information in the PD’s records system. Lamanna contends she was fired in retaliation for filing sex-discrimination claims.
Like Hamilton, Lamanna claims the Brady listing has hurt her job prospects. In court filings, Lamanna’s attorney said the city had not produced records showing the PD’s Brady list policies, criteria or why she was listed.
A mom’s shock
Then there’s the mother who emailed me about her son’s struggle with an unjustified Brady listing, saying, “As someone outside of the law enforcement or legal arena, I am shocked that there is no due process for officers placed on this list or no level of severity for an issue.”
I am honoring her request not to include any facts as her son’s situation is close to a resolution that she doesn’t want to disrupt.
There are two sides to most stories. The point is – these cases could happen exactly as I was told or read. Some prosecutor’s offices have formal Brady lists, some don’t. Most lack policies, criteria, notification, a hearing, or right to appeal. There are none of the protections of a grievance process or IA investigation. Accordingly, prosecutors and departments can weaponize their Brady lists with little consequence unless you’re a Chief with public clout or can afford a private lawyer to fight a government entity.