Officer’s reinstatement after firing for violating standards of conduct doesn’t resolve Brady listing
What if the officer can’t testify?
Sergeant Anthony Edenfield was terminated from the New Orleans Police Department (NOPD) for remarks the department deemed “racially insensitive and inappropriate.” During widespread protests following the police murder of George Floyd, Edenfield, a homicide supervisor, posted comments on social media that included:
- Calling NYC Mayor Bill de Blasio’s daughter, “this trash bi---,” after she was arrested at a protest in Manhattan.
- “[T]hese idiots want to act like animals ... I am running them over and shooting if lethal force were my only way out. The asshole under the truck got what he deserved” in response to news about a man who was run over and killed by a FedEx truck during a night of protests in St. Louis.
- “Burn down her house. Blow up her car and see if she still feels the same way,” about a New York Times writer who said destroying property was not violence because it could be replaced.
The NOPD determined Edenfield violated its professional and moral conduct policies, which prohibited posting “any material on the internet … that embarrasses, humiliates, discredits or harms the operations and reputation of the Police Department or any of its members.”
Superintendent Shaun Ferguson said, “Activities that threaten the public trust in the New Orleans Police Department are unacceptable.”
Last month, a Civil Service Commission downgraded Edenfield’s firing to an 80-day suspension and reinstated him. Commissioners found the penalty of termination was disproportionate to the infraction. The Commissioners said that failure to consider mitigating factors – Edenfield’s “20-year work history with no discipline, his emotional state at the time and earlier posts supportive of racial harmony,” resulted in an improperly aggravated termination.
The City Attorney is reviewing the case to see if it will appeal.
THE BRADY ISSUE
The U.S. Supreme Court decisions Brady and Giglio established that due process requires prosecutors to disclose to defendants any exculpatory evidence, including material that could be used to impeach a prosecution witness’s credibility. Many prosecutors’ offices have established Brady/Giglio lists of officers whose credibility has been drawn into question, requiring them to disclose the impeachment evidence to any defendants against whom the officer might testify.
Prosecutors can also 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, which might constitute separate grounds for termination.
DO “RACIALLY INSENSITIVE” REMARKS CONSTITUTE BRADY MATERIAL?
The answer depends on whether the remarks demonstrate bias that is relevant in a particular case.
The U.S. Supreme Court has clearly stated witnesses may be impeached with bias evidence. In U.S. v. Abel (1984), the Court wrote,
While the Federal Rules of Evidence do not by their terms deal with impeachment for ‘bias,’ it is clear that the Rules do contemplate such impeachment. It is permissible to impeach a witness by showing his bias under the Rules just as it was permissible to do so before their adoption.”
Many states have explicit rules of evidence that provide for impeaching a witness on the issue of bias, e.g., Maine, Alaska, Alabama, Indiana, Illinois, Arizona, Texas, New York – or the rule is established in case law.
A presentation to the International Association of Chiefs of Police (IACP) instructs that evidence of bias constitutes Brady material requiring disclosure, noting that,
Bias includes prior records allegedly showing an officer’s bias against an identifiable group, i.e., African-Americans or gays. Bias could also be shown toward a particular person or family, based upon prior conduct or statements.”
The IACP presentation gave as an example the Hamilton County (IN) Prosecutor’s Office, which requests from departments,
Evidence that a proposed witness has a racial, religious, or personal bias against a defendant individually or as a member of a group.”
Well known to law enforcement, Lexipol considers evidence of bias as potential Brady material.
Accordingly, if an officer has made statements showing a bias toward an identifiable group to which a defendant belongs, that evidence could be used to impeach the officer and is Brady material that must be disclosed.
WHAT ABOUT EDENFIELD?
Edenfield’s reinstatement doesn’t address prosecutors’ Brady duty to disclose his statements to defendants who belong to a group about which he made callous remarks. I contacted the New Orleans City Attorney’s Office to inquire if it was appealing and whether Edenfield’s potential Brady listing would be an issue raised on appeal. The office responded,
Unfortunately, at this time, we cannot comment on this matter as we are in active litigation regarding the same.”
In deciding whether to appeal Edenfield’s reinstatement, the City Attorney’s Office might well consider whether it wants to battle Edenfield’s social media posts were he to testify in a homicide case with a Black defendant, or a use of force lawsuit with a Black plaintiff.
WHAT ABOUT OTHER OFFICERS?
Officers might well consider that even if their posted social media comments don’t warrant termination as a violation of department standards of conduct, the comments may result in a Brady listing and a determination they can’t perform the critical job task of testifying.