With no oversight of list of problem cops, prosecutors mainly rely on police to self-report

With no oversight of list of problem cops, prosecutors mainly rely on police to self-report

Kara Berg
 
| Lansing State Journal

LANSING — There’s little, if any, guidance for Michigan prosecutors on how to create and manage a list of problematic cops who work in their county.

This list, commonly known as a Brady list, is often a point of contention between police and prosecutors.

But with few requirements and no oversight, lists of problem cops vary from county to county. Prosecutors rely on police to self-report most Brady-eligible offenses, even though there is no clear definition of what those offenses are. 

In two landmark U.S. Supreme Court rulings — Brady v. Maryland in 1963 and Giglio v. United States in 1972— the court determined prosecutors have a duty to disclose evidence favorable to the defendant, including information that would negatively impact the credibility of the prosecution’s witnesses.

The rulings require prosecutors to alert defense attorneys if the credibility of any witnesses — including police officers — has been questioned in the past. That’s where the Brady list comes in.

Conviction appealed

Admissibility of the seizure of a gun that tied Treavion Person to a 2018 home invasion in Lansing relied solely on information from an officer on the Brady list. A federal judge ruled the officer lied about the reason for a traffic stop of a Black man, which landed him on the list. 

Person was stopped for jaywalking, which led to the seizure of the gun and Person’s arrest for resisting and obstructing police. That same Lansing Police Department officer was the sole witness to Person’s alleged jaywalking, and evidence of the gun and the officer’s testimony was part of a jury trial that led to Person’s conviction. 

Person maintains he did not jaywalk or commit the home invasion, and should not have been convicted. He was sentenced to 22 to 48 years in prison for the 2018 home invasion and armed robbery. 

Person’s appellate attorney, Jessica Zimbelman, filed an appeal of his conviction partly because Ingham County Judge Clinton Canady did not allow Person’s trial attorney to “explore the credibility and bias of (the officer) by cross-examining him about the details of the federal court’s finding that he had lied in order to search another Black male.

“The trial court’s rulings prevented Mr. Person from presenting a defense and receiving a fair trial before the trial had even begun,” Zimbelman wrote in the appeal. 

Brady information is not automatically allowed to be released to the jury, said Jonathan Abel, a University of California Hastings professor and San Francisco public defender. Abel published research about police personnel files being accessible for Brady in the Stanford Law Review. 

Defense attorneys have to convince a judge the information is relevant and admissible, Abel said.

But trials aren’t the only place where Brady information matters. It can help defendants receive a better plea deal; the less credible the officer, the better deal they’ll get, Abel said. Prosecutors know if the case goes to trial, they won’t be able to rely on the officer on the stand, he added.

The LPD officer involved in Person’s case no longer works at the Lansing Police Department. Ingham County Prosecutor Carol Siemon removed his name from the list after Canady ruled he did not lie about the reason for the traffic stop.

No clear answer

Although Giglio and Brady rulings date back to the mid-1960s, the concept of a Brady list is fairly new, Abel said. In 2010, it was rare for prosecutors to have a list. Now, it’s much more common. And police reform being front and center this year has increased attention on Brady lists, Abel said.

But with that comes a litany of unanswered questions. Should someone ever be taken off the list? Can an officer appeal the inclusion of their name? What acts warrant being placed on the list? Should Internal Affairs findings be accessible to prosecutors? 

There is no case law on any of these questions, leaving prosecutors to make the decision themselves. All that is required is for prosecutors to give defense attorneys any evidence or information they have that is material, significant and favorable to their client, including information on police misconduct that may impact their credibility.

“The answers are being developed,” Abel said. “It’s all there in this general Constitutional rule, but how it plays out to very specific questions hasn’t been answered by lower courts yet.”

Prosecutors have the responsibility of interpreting the case law to determine what information should be disclosed. If they get it wrong, they risk a conviction being overturned.

“I don’t think we’ve fine-tuned ‘misconduct,’” Siemon said. She compared it to an old definition of pornography; “You know it when you see it.”

Siemon said her office has spent the past several months updating its Brady list and the policies surrounding it. She removed 11 officers from the list, mostly because they no longer work in the county and do not have any pending cases.

Two, including the officer involved in Person’s case, were removed because Canady determined they did not lie about their reasons for the stop. One of those officers still works at LPD. 

“A lot of stuff I’m doing, I’m putting myself out there,” Siemon said. “I’m willing to be wrong, because I’m willing to do the right thing instead of always waiting for someone else to develop the best practice.”

In Eaton County, where just one officer is on the Brady list, there is no policy. Prosecutor Doug Lloyd believes the list should mainly be for officers who intentionally make false statements. Lloyd said any officers with open cases who are working in the county would remain on the list. 

Clinton County Prosecutor Chuck Sherman said his office does not have a list because there are no officers in the county who would qualify to be on a Brady list.

Of the three officers on Ingham County’s list, one lied in a report about canvassing a neighborhood when he had not, one was convicted in 2006 of filing a false police report and one lied on his daily activity report and dispatch notes about a call. Two of the three remain employed at Michigan State Police and the Ingham County Sheriff’s Office. The other retired in August. 

Police transparency

In 2019, five years after then-Ingham County Prosecutor Stuart Dunnings’ office created the list, Sheriff Scott Wriggelsworth performed an audit of all personnel files to determine if there was any misconduct that might merit placing a deputy on the county’s Brady list. He found one instance — a deputy who wrote in a report that he had canvassed the neighborhood during a breaking and entering investigation when he had not. He passed that information on to the prosecutor’s office.

Meridian Township Chief Ken Plaga said it’s more important to be transparent with the prosecutor’s office than for misconduct to be dragged out in court. Eight of the 15 officers on the Brady list were from Meridian Township, for acts ranging from falsifying a sick slip to lying to superiors to appear productive. Only one Meridian Township officer remains on the list.

“We want to make sure all the information is out there,” Plaga said. “And it should be. People have a right to know, especially if it’s someone on trial for a criminal offense, if there’s an issue.”

He said he sends a memo to the prosecutor’s office any time an officer is disciplined for a truthfulness or character issue.

“Maybe some organizations don’t think lying about a sick day or damaging equipment meets the level that needs to be reported, but I’m pretty black and white on it,” Plaga said. “It’s better to air in caution than not report it and have an a-ha moment in trial.”

Contact reporter Kara Berg at 517-377-1113 or kberg@lsj.com. Follow her on Twitter @karaberg95.

Published at Sun, 08 Nov 2020 19:13:00 +0000

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