Do Brady and Giglio trump officers’ due process rights?
If not, a lot of prosecutors and police departments are violating the Constitution
The U.S. Supreme Court decisions Brady and Giglio established that due process required prosecutors to disclose to defendants any exculpatory evidence. Such evidence includes material that could be used to impeach a prosecution witness, like dishonesty or any other evidence bearing on witness credibility.
In response, many prosecutors’ offices established Brady/Giglio lists of officers whose credibility had been drawn into question. Nationwide, there are no standards for what conduct can land an officer on such a list, whether the conduct must be substantiated, whether the officer is notified and whether they are entitled to any kind of hearing or appeal.
Being Brady/Giglio listed can end careers and ruin reputations. In addition to placing an officer on such a list, prosecutors can tell departments not to send them any cases in which such officers are witnesses. If an officer can’t testify, they can’t perform a critical function of their job and can be terminated. Being listed can negatively impact future employment.
I’ve previously written about officers’ claims that their departments and prosecutors’ offices have weaponized Brady/Giglio to terminate them for political, personal-grudge or whistleblower retaliation reasons – without any of the procedural protections of the department’s official disciplinary process.
What about officers’ due process rights?
Notice of allegations, an opportunity to be heard and an impartial decision-maker are fundamental to due process. There is nothing in Brady and Giglio to suggest defendants’ due process rights trump those of officers. The Supreme Court didn’t address officers’ countervailing rights in the context of being Brady listed. With a growing number of officers feeling they’ve been Brady/Giglio listed unfairly, officers are starting to push back and demand due process.
An internal memo concludes prosecutor’s Brady list violates due process
When Lansing Police Chief Daryl Green learned he’d been placed on the Ingham County Prosecutor Office’s Brady list, he went public, arguing he hadn’t been dishonest nor had he been given notice or opportunity to be heard and refute the matter. Chief Green was ultimately removed from the list. The then Prosecuting Attorney (PA) had an Assistant Prosecuting Attorney (APA) review the process that had been in place for years.
In a memorandum to the PA dated August 6, 2020, the APA concluded the office’s Brady list practices violated officers’ due process rights. The memorandum quoted Jonathan Abel of the Stanford Constitutional Law Center who, writing about the lack of “substantive and procedural protections to guard against mistakenly or unfairly placing an officer on the Brady list,” observed,
Unlike in police department disciplinary hearings, which provide many procedural protections to accused officers, prosecutors can make Brady-cop designations based on flimsy evidence and without giving officers an opportunity to contest the allegations beforehand or to appeal the decisions afterward.”
The APA listed several problems with the County Prosecutor Office’s Brady list:
- When the office received information about an officer’s dishonesty from a PD, it was deemed “substantiated” and automatically entered into the database.
- The information remained there permanently.
- Officers received no notice they were being considered for listing or were listed.
- There was no procedure to contest or correct any inaccuracies before or after the officer was listed.
The APA also wrote, “Case law suggests that this office should take the following steps.”
- An attorney or committee of attorneys should review each Brady submission and determine whether it includes potential impeachment evidence.
- If the submission includes Brady material, the officer should receive written notice they are being considered for inclusion on the Brady list. The notice should include the alleged facts about the dishonest conduct and advise the officer they have the right to contest the facts and the listing in writing, orally, or both.
- The attorney or committee should determine if the officer’s name should be Brady listed and how much background information should be in the database.
- Formal notice should be sent to the officer about their inclusion on the list.
- The existing Brady list should be reviewed to determine whether the entries actually are Brady material. If they are, the listed officers should have an opportunity to request their names be removed.
Courts recognize officers have due process rights when being Brady listed
Citing other court decisions, a Pennsylvania appellate court ruled in Fraternal Order of Police Lodge No. 5 v. City of Philadelphia (2021) that neither Brady nor Giglio eliminated officers’ due process rights regarding their placement on a Brady list. The court specifically recognized a constitutionally based legal protection against governmental infringement of reputation without due process, adding,
There can be little question that placement on a formal list of officers who are deemed untrustworthy or unworthy of the privilege of testifying in support of a prosecution could very well be detrimental to their reputations in the community and in the employment context if released.”
The court also held that officers shouldn’t have to wait until damage was done to their reputation before being provided a meaningful opportunity to be heard.
Some states are legislating due process for officers
Last year, with the advocacy of the Combined Law Enforcement Associations of Texas (CLEAT), two bills – HB 3831 and SB 1894 – were filed that would provide officers a hearing through the State Office of Administrative Hearings if they felt they were unjustly placed on a Brady List. In May 2021, Arizona signed into law House Bill 2295, which provides officers a way to appeal being Brady listed.
Time to get ahead
Prosecutors and PDs should embrace Brady’s and Giglio’s affirmative duty to disclose evidence relating to officers’ credibility. This isn’t about shielding dishonest officers, who tarnish the badge and burden the profession.
But Brady and Giglio do not preclude officers’ due process rights. Those who swear to uphold the Constitution are also entitled to its protections. It’s past time for all prosecutor offices and PDs to get ahead of the turning tide and implement Brady list procedures that are constitutional for all.
In cooperation, Maricopa Deputy County Attorney Tom Van Dorn provided his office’s most recent policy for meeting Brady disclosure requirements, evolving case law and officers’ due process rights: