Officer scores a victory for Brady list due process – other states and prosecutors should follow suit

One officer's nightmare spurs him to action


In April 2019, Officer Travis Hamilton answered a knock at his front door in Iowa. It was a reporter asking him about being on the County Attorney’s Brady list. Thus began an over three-year quest to clear his name and ensure other officers didn’t experience the same nightmare he would.

Brady lists arose from U.S. Supreme Court cases that held prosecutors must disclose to the defense any exculpatory evidence – including evidence that could be used to impeach a prosecution witness. Impeachment evidence can include dishonesty, bias, or any other misconduct relevant to the facts of the case. To meet their Brady obligations, prosecuting agencies began keeping lists of officers for whom there was such evidence.

Officer Hamilton was unaware such a list even existed. When he contacted the County Attorney’s office, he was told there was no protocol for being placed on the list and no means to appeal. He made a public records request and received a list with 11 officers’ names, including his, but no explanation for why he was on the list. He requested a meeting to discuss the matter and received no reply.

Being Brady-listed can be career-ending. A prosecutor’s office can tell a police agency not to forward any cases with a Brady-listed officer as a witness. The police agency can then terminate the officer because he can’t perform a critical job task – testify.

That’s what happened to Hamilton. He was asked to resign and, with nearly 20 years of experience, hasn’t been able to get a law enforcement job since. One Chief confided he was the most qualified applicant but wouldn’t be hired because of the Brady listing.

Hamilton got a security job that paid more and was less stressful, but he wanted to clear his name. He couldn’t. There was absolutely no due process in the ending of his career – no notice, no hearing, no opportunity to confront any allegations. Travis Hamilton set out to change that. He didn’t want any other officer to go through what he had.

Officer Hamilton reached out to me a few months before I first wrote about him. Since then, he’s contacted people across the country to share his story and find out how Brady lists were being handled in other states. Committed to advancing legislation that would provide officers due process, he contacted Senators and House Representatives, met with them, and shared his story and the information he’d gathered. In June 2022, Iowa’s Governor signed into law an act establishing procedural requirements for placing an officer on a Brady list.

Officer Hamilton said,

It's rewarding to see some of the information I provided included in the Brady bill and I am anxiously looking forward to receiving my formal notification as to why I was placed on the list and presenting my appeal. I am very thankful for the hard work of both the Iowa House and Senate in passing this important bill.”  

LAW GIVES OFFICERS SOME DUE PROCESS

The Iowa legislation prohibits an agency from threatening, disciplining, or terminating an officer solely due to a prosecuting agency deciding impeachment evidence exists concerning the officer. It also requires any prosecuting agency that maintains a Brady list to have policies that include, at a minimum:

  1. The criteria used to place the officer’s name on the list.
  2. The officer’s right to written notice and to provide input before the prosecuting agency decides whether to place the officer’s name on the list. The notice shall also inform the officer of his right to request documents, records and any other evidence in the possession of the prosecuting agency relevant to whether the officer's name should be placed on the list.
  3. The prosecuting agency’s obligation to notify the officer of its decision.
  4. The officer’s right to request reconsideration and to offer evidence in support of the request.
  5. Time frames and procedures for notifying the officer of the prosecuting agency’s final decision.

Officers whose names were placed on a Brady list prior to the legislation must be notified within 90 days after the law’s effective date and afforded the same process to seek reconsideration as officers placed on the list after the law’s enactment.

A CALL TO PROSECUTORS

As a former state and federal prosecutor, I urge prosecuting agencies to develop clear, specific, and fair Brady policies without waiting for a legislative mandate.

A September 2021 “Brady-Giglio Guide for Prosecutors” generated by the American College of Trial Lawyers provides several resources for guidance in developing policies. However, the guide itself only addresses the prosecution’s obligations to the defense. While the guide acknowledges Brady listing an officer can be career-ending, it makes no mention of due process for officers.

Washington state passed legislation in July 2022 requiring prosecutors to develop protocols for the type of conduct that would result in an officer being placed on a Brady list and under what circumstances officers may be removed, but didn’t address due process for officers.

I’ve previously provided the Maricopa County Attorney (AZ) Brady Policies and Procedures. Another source for a model policy is the Los Angeles District Attorney’s Office.

One matter I haven’t seen addressed in legislation or policies is the standard of proof regarding allegations warranting an officer being Brady listed. Michael P. Stone, founder of a police litigation firm, argues it should be “clear and convincing.”

The Supreme Court has never said the due process rights of defendants trump the due process rights of officers. Prosecutors should embrace and guard the rights of both. As the Supreme Court has stated, we are, after all, “servants of the law” whose interest is “that justice shall be done.”

NEXT: Do Brady and Giglio trump officers’ due process rights?

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