Officer Removed from Brady List

JASON H. JASMINE
Founding Partner
Messing Adam & Jasmine LLP

Most peace officers are aware that in the 1963 case of Brady v. Maryland, the U.S. Supreme Court created an affirmative obligation for prosecutors to disclose to the defense all known exculpatory information. Failure to do so violates the criminal defendant’s due process rights. The information that must be disclosed includes evidence regarding the reliability and credibility of witnesses.

There are serious consequences for failing to disclose “Brady material,” up to and including dismissal of the case. Aside from potential losses and/or appeals of criminal convictions, there can also be civil liability for failure to disclose Brady material. As a result, departments tend to aggressively report peace officers whose alleged misconduct might be considered Brady material, and DAs are always on the lookout for information that might qualify.

In most counties, within the last 10 to 20 years, DAs have established “Brady lists” of peace officers who have proven to be dishonest, or have otherwise engaged in misconduct that might cast doubt on their reliability and credibility.

While the Public Safety Procedural Bill of Rights prohibits an agency from taking any adverse action simply because an officer has been placed on a Brady list (CA Gov. Code §3305.5[a]), the agency may certainly discipline the peace officer for the underlying misconduct. However, some peace officers have found that placement on a Brady list is a “scarlet letter” that prevents future advancement, beneficial assignments and the like. Thus, being designated on a Brady list can be viewed by officers as an end to their careers.

In representing peace officers throughout the state, we have discovered that Brady policies, procedures and practices may vary county by county.

Recently, we represented a peace officer who had been terminated based on various allegations of misconduct, including dishonesty. We successfully represented the officer in his appeal, and obtained a finding that the officer had not been dishonest. The termination was reduced to a 40-hour suspension for significantly lesser charges. The officer, however, remained on the Brady list.

In this jurisdiction, there was no formal process to appeal placement on a Brady list, and we were expressly told that the DA does not rely solely upon the determination of the administrative appeal as the basis to remove an officer from the list.

We met with the DA, were provided the opportunity to explain our issues and concerns, and asked that the DA do the same. By engaging in an open and constructive dialogue, we were able to discover the DA’s specific factual concerns, and what evidence and argument would be sufficient to overcome those concerns. Ultimately, we submitted targeted documentary evidence (together with summaries and arguments) that allowed the DA’s Office to meet its concerns and feel confident that it could remove the officer from the Brady list without exposing itself to liability or risk in its prosecutions.

Having had all of the serious charges overturned, and now being removed from the Brady list, this officer no longer has an anchor weighing down his career advancement. We, and the officer involved, are thankful to LDF for its support in this matter.

About the Author

Jason Jasmine represented the officer in this case, whose identity is protected for obvious reasons. Jason is LDF panel counsel and is one of the founding partners of Messing Adam & Jasmine LLP, having previously been a labor partner with Carroll Burdick & McDonough LLP.