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Thursday, February 22, 2024
Feb. 22, 2024

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Legal system, law enforcement at odds over Brady List

Roster of officers whose testimony in court could be called into question is required by law

By , Columbian Breaking News Reporter
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There’s an old adage in police work: You lie, you die.

When you wear the badge, your word is everything. And rightfully so — law enforcement officers have the power to place someone under arrest and ultimately deprive them of their liberty, considering how their account of events often carries more weight in the eyes of a jury.

The discovery of blatant lies often ends with officers kicked off the force. But what about less serious acts of dishonesty? Or a miscommunication that could be seen as either a mistake or an act of deceit, depending on whom you believe?

Such questions swirl around a list of a dozen officers maintained by the Clark County Prosecuting Attorney’s Office. It serves as a roster of officers whose testimony in court could be brought into question because of something they’ve done in the past.

It’s called a “Brady List” and the controversy around it has heightened in recent years as guidelines for maintaining the information have expanded.

Officers say that inappropriately placing someone on the list unjustly tarnishes reputations, while defense attorneys say the procedure for maintaining the list involves too much secrecy. The prosecuting attorney, legally charged with maintaining the list, argues that changing the system could have devastating effects on a case and those involved.

Creating a Brady List

The idea behind keeping this kind of list dates back to the 1963 U.S. Supreme Court decision Brady v. Maryland. This landmark ruling created the standard that prosecutors must disclose “exculpatory evidence,” or any evidence that might be favorable to a defendant’s case.

It took decades of overturned cases, however, for the courts to determine that the ruling also applies to evidence that calls into question the credibility of recurring government witnesses — including police officers who frequently testify in criminal court cases.

So even though the Brady ruling occurred more than 50 years ago, it wasn’t until 2010 that the Clark County Prosecuting Attorney’s Office formalized its own procedure for deciding which officers’ testimonies could be brought into question.

For the most part, the county’s policy is straightforward: If there is a sustained finding of an officer’s dishonesty through the internal affairs process, the law enforcement agency must notify the prosecuting attorney. That officer is then automatically added to the Brady List.

But there’s a second way for an officer to get on the list: If information is presented directly to the prosecuting attorney’s office, or if questions of credibility arise during court proceedings, a committee of senior prosecutors considers whether the information meets the legal standard set by case law to add the officer to the list.

“We don’t make these decisions lightly,” Clark County Prosecuting Attorney Tony Golik said. “These are seasoned prosecutors that are very, very familiar with all the cases that deal with our Brady obligation, and they have a very clear understanding of how detrimental it can be to the reputation of an officer to put them on the Brady List.”

Once an officer is on the list, the prosecutor’s office is required to turn over that officer’s Brady file — which includes information on the potential misconduct — to defense attorneys when the prosecutor plans to call that officer as a witness. If the defense attorney wants to use the information, a judge ultimately determines if the officer can be questioned about the incident, in front of jurors.

It’s not fun, prosecutors say, but it’s necessary.

If it ever came to light that a prosecuting attorney didn’t disclose that an officer who testified in a case was on the Brady List, the case could be overturned. There could also be sanctions against the prosecuting attorney, and lawsuits could be filed.

“The whole idea is to get it all out there and let the judge decide,” said Denny Hunter, a former chief criminal deputy prosecuting attorney in Clark County who helped craft the policy.

Golik said that so far, broad questioning about a past indiscretion has not been admissible as evidence. But even though jurors aren’t exposed to all of the details of officers’ misdeeds, Vancouver Police Officers’ Guild Vice President Neil Martin said that officers on the Brady List are stigmatized and continually haunted by one past incident.

“People are human, people make mistakes … you learn from it and move on,” Martin said. But being on the Brady List, the mistake is brought up every few years when a case the officer is involved with goes to trial. “Bringing it up reopens old wounds,” he said.

Changing standards

Over the past few years, the standard has changed for what information prosecuting attorneys are required to know and share when it comes to allegations of police misconduct.

While prosecutors were previously notified of police officer wrongdoing upon the completion of an internal affairs investigation, the court ruling Olsen v. U.S. changed that. The January 2013 decision created a new standard that requires prosecutors to also be notified of pending internal affairs cases that involve dishonesty.

The ruling resulted in what Golik calls the biggest change to the county’s Brady policy since he took office in 2011.

“This is an area that is understandably a very touchy area for (law enforcement) and one that can have a very serious consequence on a career of a law enforcement officer,” Golik said. “All of a sudden, (the standard) is shifting to pending IAs when there hasn’t even been a final determination that they did anything wrong. That’s a big deal.”

Golik and heads of law enforcement agencies are still ironing out the details, mainly deciding at which point internal affairs investigations should be shared with prosecutors.

A draft cooperation agreement would require that when an internal affairs investigation “begins to mature at all into something that looks like it could have merit, they need to immediately disclose it to us so that we can then disclose to defense that there is an ongoing IA and disclose what we have,” Golik said. “As the prosecutor, I have to rely on the law enforcement to do that.”

The police guild’s Martin said the new standard goes against clear rules in previous case law that says prosecutors didn’t have the obligation to disclose preliminary, challenged or speculative information.

“Allegations part of an ongoing investigation to me seem to be preliminary, challenged or speculative,” Martin said. “I think there are legitimate concerns about providing information prior to an investigation being completed.”

Brady cops

Of the hundreds of commissioned law enforcement officers who work in Clark County, 12 are on the Brady List, and only six of those still carry a badge: four at the Vancouver Police Department, one at the Clark County Sheriff’s Office and one at the Camas Police Department.

Vancouver Police Chief James McElvain said that while being on the list may cause a hiccup in court proceedings, it does not mean the officers can no longer work in law enforcement nor limit their career path.

“It comes down to differences of opinion,” McElvain said. “It’s a different level of threshold that we may not sustain (an internal affairs) case versus what by law (prosecutors) feel is disclosable information.”

Chief Criminal Deputy Prosecuting Attorney Scott Jackson said the six former officers remain on the list because they could still be called as witnesses in cases still working through the system.

The Columbian has chosen to not publish the names of the officers on the list due to the potential damage to careers and the subjective nature of how some officers were included.

The list is constantly evolving and involves a wide range of incidents.

For example, one now-former Vancouver police officer had been placed on the list after having an intimate relationship with a criminal informant, which violated department policy and compromised the integrity of numerous cases. The officer, who resigned, was recently removed from the list after prosecutors determined further testimony was not needed.

Other cases are less clear-cut.

One Vancouver police patrol officer was placed on the list by the prosecuting attorney’s Brady Committee after conflicting recollections of a conversation between the officer and a prosecuting attorney prior to a trial. The prosecuting attorney said the two had talked about how the officer hadn’t given Miranda warnings at a certain point in the investigation; the officer claimed that was not what was said, and the officer later testified to giving Miranda warnings.

“The Vancouver city attorney and VPD admin have staunchly supported (the officer) while vehemently noting disagreement with the county’s solitary belief that (the officer) has credibility issues,” said the officer’s attorney, Greg Ferguson. “The county’s pugnacity and unwillingness to revisit this issue implies some sort of ulterior motive. In any event, we will yet again be appealing to county prosecutors that (the officer) be immediately removed from the Brady List.”

Following the prosecuting attorney’s decision, the department did its own internal investigation and concluded that the evidence did not sustain a finding that the officer provided false statements, though it did suggest additional training in communication for the officer.

“(The officer) does feel unfairly singled out insofar as Brady has been applied so inconsistently,” Ferguson said. “There is no ombudsman or other neutral tribunal available to an officer who believes (he or she) has been unfairly accused.”

Guild concerns

Ferguson’s point gets at one of the biggest issues that the Vancouver Police Officers’ Guild has with how the county prosecuting attorney’s office maintains its list.

Martin, the guild’s vice president, said that he understands the need for the Brady List, but he said that the county’s policy doesn’t allow for oversight. He said prosecutors are the sole judge of facts, and there are no negative repercussions for a prosecutor to add an officer’s name to the list.

“They have a bright-line rule that, even if it’s questionable, they’re going to resolve questions in favor of maintaining the list with the officer’s name,” Martin said. “It doesn’t have to be dishonesty or untruthfulness. Rumor, innuendo — if the prosecutor’s office feels there’s any validity to the rumor or innuendo, the prosecuting attorney will put you on the list. They might as well put everybody on the list.”

Just how subjective the Brady List can be becomes evident when reviewing the Vancouver City Attorney’s Office’s policy on the matter. The agency maintains its own Brady material through what it calls the “Potentially Impeachable Database,” avoiding the terms “Brady” and “list,” for those who testify in District Court cases. Because such cases are misdemeanors and infractions that occur within Vancouver city limits, the database deals solely with the Vancouver Police Department.

Even so, the number of VPD officers on the city’s list versus the county’s is different. The city has one Vancouver police officer in its database; the county has four on its list.

Jonathan Young, Vancouver civil division chief for the Vancouver City Attorney’s Office, chalks the differences up to the variability of legal opinion.

“There are some legal questions that you could ask two or three different lawyers and get two to three different answers,” Young said. “You’re trying to apply a complicated legal standard to a complicated fact pattern.”

Defenders seek input

And the police union isn’t the only one to want more oversight.

Defense attorney Tom Phelan, who has practiced criminal law in Clark County for 35 years, said that he’s never once been notified by a prosecutor of a Brady officer.

“They don’t show up that often,” Phelan said. “The real question to me is: Are there others who should be on the list who aren’t?”

Because all of the decisions happen behind closed doors, Phelan said, there is no way for defense attorneys to know if the prosecuting attorney is being ethical — prosecutors only disclose that an officer’s on the Brady List when the officer is called as a state witness.

“The problem is, we’re sort of at their mercy. … We have to rely on them to tell us,” Phelan said. “It’s difficult for me to know if they’re complying.”

Even though it comes up infrequently, Phelan said that having the prosecuting attorney properly maintain this kind of evidence is crucial to the job of defending the accused.

“There has to be integrity in the system,” he said. “When a police officer is put on the Brady List, they’re put on it for a reason.”

Golik said that he can’t imagine a system for maintaining a Brady List that would operate differently, because the prosecuting attorney is the agency charged by law with the duty. Oversight in the process, he said, is the responsibility of the court.

“Somebody has to make this decision, and the law makes that very clear that it has to be the prosecutor’s office,” he said. “Our greatest overarching duty as prosecutors is seeking justice, and sometimes seeking justice requires difficult and uncomfortable decisions.”

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Columbian Breaking News Reporter