ROBERT L. BAUMANN
Ferrone & Ferrone
As we welcome the new year, several laws will officially take effect in California that directly impact your profession. Departments have already initiated compliance to prepare themselves for the mandated reporting requirements, especially regarding complaint investigations. The effect of these laws has triggered an uptick in Brady letters issued to peace officers. A rise in referrals is deeply concerning and has spurred much confusion on what triggers the infamous “Brady letter,” which is grounded in Brady v. Maryland. It is valuable for you to understand the history of Brady, the process and the impact to address any concerns you may have.
In 1958, John Brady and his associate, Charles Boblit, were arrested and charged with murder. Brady contended that Boblit was the one who committed the killing. During their separate trials, the prosecution in the Brady case withheld a written confession from Boblit admitting to the killing. Brady was convicted and sentenced to death, which he appealed. The Supreme Court ruled that Brady’s due process rights were violated because the written confession was deemed exculpatory; i.e., “material” to determining the defendant’s guilt or punishment. This ruling placed a duty on prosecutors to disclose evidence that can potentially affect a defendant’s guilt or punishment, including certain allegations against peace officers.
District attorneys across all counties in California maintain an internal database containing names of peace officers with a record of lying, integrity violations or allegations of moral turpitude. This is commonly known as the “Brady list.” Los Angeles County, for example, has the Officer and Recurrent Witness Information Tracking System (ORWITS), which is their internal database for potentially impeachable evidence against officers. As in other counties, the database tracks peace officers in the event their name pops up on a witness list for a respective criminal case. The handling prosecutor is immediately notified, typically when they are assigned the case, and then accesses the database to review the impeachment-worthy material. It then becomes the responsibility of the prosecutor to determine whether this information is disclosed to the defendant or their counsel. Please note, the prosecutor’s ability to disclose is discretionary, but prosecutors have an affirmative duty to reveal exculpatory information. As a result, prosecutors often over-disclose to the defense to avoid accusations of impropriety on their part.
Peace officers are typically provided with written notice when their names are entered into the “Brady” system. Many counties allow the peace officer to challenge or respond to placement in the database, while others just provide notice and nothing more. Regardless of the option to challenge or not, placement on the Brady list is not considered a punitive action, which means the appeal rights common to a peace officer’s discipline proceedings do not apply.
Placement on the list is not only confined to sustained allegations or convictions for lying, although this tends to comprise the vast majority of issuance of Brady letters. Peace officers accused of acts of moral turpitude, inappropriate conduct or integrity concerns beyond mere speculation can find their names placed on the Brady list. Therefore, the threshold for issuance of a Brady letter is much lower than the probable cause or preponderance of the evidence standard. During a recent Brady appeal hearing, for example, the ruling district attorney referred to their standard as “speculation with minimal corroboration.” This should signify to you the base level standard for issuance of a Brady letter and, of course, the prime reason for the influx of Brady referrals in recent years.
Brady is not only about lying or perjury claims. This was the primary focus of Brady letters, but district attorneys and police departments have felt the pressure from Sacramento and are now issuing notices for peace officers without sustained allegations or criminal findings. However, the mere placement on a Brady list is not grounds for disciplinary actions. Although the underlying events that resulted in a Brady letter may lead to discipline, mere placement is no longer the death knell for a peace officer’s career. The reasons and allegations for some officers finding a home on the Brady list are so baseless that the intended consequences of a Brady letter have lost their effect.
We all know someone on a Brady list. The mere thought is a scary sentiment. Most of these Brady letters were spawned by administrative investigations, whose contents were turned over to district attorneys for Brady referrals. It is paramount for you to have aggressive legal representation from the beginning. You have rights, and it is now more than necessary for you to assert these protections at the very infancy of an administrative or criminal investigation. You spend your entire life protecting others; it is now time to start protecting yourself.