CASE LAW UPDATE Brady v. Maryland, 373 U.S. 83 (1963)

CASE LAW UPDATE Brady v. Maryland, 373 U.S. 83 (1963) Presented By: John F. Kautzman Leo T. Blackwell RUCKELSHAUS, KAUTZMAN, BLACKWELL, BEMIS & HASBROOK Indianapolis, Indiana WWW.RUCKLAW.COM

We extend our sincere appreciation to National FOP President, Chuck Canterbury; General Counsel Larry James; and Associate General Counsel Christina Corl for providing invaluable resources in the preparation of this PowerPoint. Additional thanks to Labor Services Director Rick Weisman for his tremendous assistance, as well as Associate General Counsel Michael Coviello.

The Case, The Facts, and The Rule The Administrative Impact on Public Safety What Must Be Disclosed? Officer Discipline and Brady Lists Risks of Personal and Departmental Liability What Can You Do?

The Case, The Facts, and The Rule

Core of Case: Due process requires the disclosure of evidence favorable to an accused upon request where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963). Brady et al. Essentials This includes sustained findings of untruthfulness after a departmental investigation. In short, an officer s personnel file is fair game for criminal defense attorneys to impeach an officer on the witness stand because an officer s credibility is a material issue and lack of credibility is potentially exculpatory evidence.

Two men, Brady and Boblit, were found guilty of 1 st degree murder and sentenced to death. Brady admitted participation in the crime but said Boblit did the actual killing. Before trial, Brady s attorney requested Boblit s extra-judicial statements from the prosecution. Attorney was given some, but not all statements. One missing statement was Boblit s confession to the homicide. The evidence was not discovered until after Brady was tried, convicted and sentenced to death.

Issue: Whether Brady was denied a federal right after Maryland Court of Appeal remanded the case for new trial on issue of punishment only. Held: Prosecutorial suppression of Boblit s confession violated Due Process Clause of Fourteenth Amendment to United States Constitution.

Administrative Impact on Public Safety

Subsequent to Brady, the Supreme Court held that evidence which may be used to impeach the testimony of a government witness falls within the ambit of Brady when the credibility of the witness may have an effect on the jury s determination of guilt or innocence. See Giglio v. United States, 405 U.S. 150, 154 (1972) and United States v. Agurs, 427 U.S. 97 (1976). The Supreme Court modified the Brady rule to require the government to disclose exculpatory evidence even when the Defendant has not requested the information. Giglio at 107. (The Brady-Giglio Requirement). The Brady-Giglio requirement extends to police officers called by the government to testify.

Timing of Disclosures State Disclosures Timing of Brady disclosures and State discovery disclosures must be in harmony However, valid State laws vary as to specific timing of disclosures Federal Disclosures Timing of Brady disclosures can be permissibly altered by federal statutes such as the Jencks Act 18 U.S.C. 3500(b) Departments must be aware of and instruct officers on the appropriate timing and nature of required disclosures

What Must be Disclosed?

Degree of Disclosure Required Brady and its Progeny do not, however, require the prosecution to disclose all exculpatory and impeachment material; it need disclose only material that, if suppressed, would deprive the Defendant of a fair trial. United States v. Bagley, 473 U.S. 667, 675 (1985). In the context of Brady, a defendant is deprived of a fair trial only where there is a reasonable probability that the government s suppression effected the outcome of the case, Id. at 682, or where the suppressed evidence could reasonably be taken to put the whole case in such a different light as to undermine the confidence of the verdict. Kyles v. Whitley, 514 U.S. 419, 435 (1995).

United States v. Henthorn, 931 F.2d 29 (9 th Cir. 1991), cert. denied 503 U.S. 972 (1992). Court confronted with the issue of what type of information contained in personnel files of law enforcement officers is required to be released to the defense. Defendant requested prosecution produce the personnel files of all law enforcement witnesses who it intends to call at trial for evidence of pergurious conduct or other like dishonesty, in camera, to determine if those portions of the officer s personnel files ought to be made available to the defense for impeachment purposes. The trial court denied the request. On appeal, the Ninth Circuit reversed and remanded the case instructing that the prosecution was incorrect in its assertion that it is the defendant s burden to make an initial showing of materiality. The obligation to examine the files arises by virtue of the making of a demand for their production. Id. at 31.

Contrary to United States v. Henthorn, courts in the 6 th, 7 th, and 11 th circuits have held that the contents of Police personnel files need not be produced without sufficient evidence from the Defendant that impeaching or material evidence is contained in the personnel file. Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial. A due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden upon the district court. United States v. Quinn, 123 F.3d 1415, 1422 (11th Cir. 1997) (citing United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985)) see also United States v. Driscoll, 970 F.2d 1472, 1482 (6th Cir.1992).

The Supreme Court and federal courts have expanded the duty to disclose exculpatory and impeachment evidence to include information known only by law enforcement, even if the Prosecution is unaware. Accordingly, Prosecutors are not permitted to claim ignorance and have duty to discover information known by law enforcement. In Youngblood v. West Virginia, 547 U.S. 867, 870 (2006), the Supreme Court stated that Brady is violated when the government fails to turn over evidence that is known only to police investigators and not to the prosecutor. In other words, as stated in Kyles v. Whitley, 514 U.S. 419, 437 (1995), prosecutors have a duty to learn of any favorable evidence known to the others acting on the government s behalf in the case, including the police.

In United States v. Risha, 445 F.3d 298 (3 rd Cir. 2006), the Third Circuit set out factors used by most circuits to determine whether a state agency s knowledge of Brady and Giglio information can be imputed to the federal government. These factors are: 1. Whether the party with knowledge of the information is acting on the government s behalf or is under its control; 2. The extent to which the party with knowledge and the federal government are part of a team, are participating in a joint task force, or are sharing resources; and 3. Whether the entity charged with constructive possession has ready access to the evidence. Id. at 304.

U.S. Department of Justice Policy: Each investigative agency employee must inform prosecutors of potential impeachment materials as early as possible before providing sworn statement or testimony in any criminal investigation or case. Investigative agencies must disclose certain information. Substantiated allegations: any findings of misconduct demonstrating bias or lack of candor or truthfulness; Pending investigations or allegations: any credible allegation of misconduct that reflects upon the truthfulness or possible bias of the employee who is the subject of a pending investigation; Criminal Charges: any past or pending criminal charges against employee; Allegations that are unsubstantiated, not credible, or have resulted in exoneration: When such allegations can be said to go to the truthfulness of the employee, even they must be revealed to the prosecutor under certain circumstances.

Officer Discipline and Brady Lists

In an attempt to comply with the mandates of Brady and protect cases from impeachment evidence, some State and Federal Prosecutors keep Brady Lists of officers who may be subject to impeachment and upon whom they believe they cannot rely. Whether Officers can be disciplined or terminated for appearing on such lists is an evolving or unanswered question in most jurisdictions. In response to this trend, California adopted 3305.5 to its Public Safety Officers Procedural Bill of Rights, which prohibits punitive actions or denials of promotion based solely upon an officer s appearance on a Brady list.

In Unified Government of Wyandotte County, FMCS CaseNo. 130114-52556-7 (Diekemper, 2013), a police officer was accused of theft and the D.A. determined that the charges were not supported. Despite such determination, the D.A. determined that the D.A. s office would not rely upon information obtained from the officer for future criminal investigations. Accordinly, the City then fired the officer. Arbitration panel found that the D.A. did not have the authority to de facto terminate employees and that the officer was entitled to reinstatement.

Kitsap County Deputy Sheriff s Guild v. Kitsap County Sheriff, No. 80720-5 (S.Ct. of Washington, Oct. 29, 2009). Deputy LaFrance was fired for 29 documented incidents of misconduct, including untruthfulness. An arbitrator heard the case and determined that the charges were accurate but termination was not appropriate. The Court of Appeals overturned the arbitrator s decision as contrary to public policy. The Supreme Court of Washington reversed the Appellate Court and held that decisions based upon public policy are limited to those decisions that violate an explicit, well defined and dominant public policy, not simply general considerations of supposed public interest the Brady rule provides neither an explicit nor a well defined public policy against reinstating an officer found to be untruthful. Thus, arbitrator s order reinstating the deputy sheriff was not contrary to public policy.

Law enforcement agencies have taken the position that public policy condemns police officer dishonesty such that public policy would justify the termination of untruthful police officers. LaChance v. Erikson, 522 U.S. 262 (1998). Collection of government employees whose cases were merged and addressed in a single case. The consolidated cases involved appeals from decisions of the Merit Systems Protection Board reversing the terminations of federal agency employees based upon false statements given by those employees during internal investigations. The Supreme Court held that a governmental agency may take adverse action, including termination, against an employee because the employee made false statements in response to an underlying charge of misconduct. As a result of this case, several state and federal courts have held public policy supports the termination of police officers who were found to have lied during the course of internal investigations.

In Town of Bloomfield v. United Electrical Radio & Machine Workers of America, No. CV064020925 S. (Conn. Super., Nov. 15, 2006), a police officer was found to have lied during the course of an investigation. He was terminated and appealed his termination. Arbitration panel found that while officer was untruthful during the investigation, termination was too harsh a penalty. In vacating the arbitration award and reinstating the officer s termination, the Court found that there was clear public policy in Connecticut that it is against public policy for a police officer to lie.

Conclusion: Public Policy analysis as it relates to Brady terminations is very statelaw specific. In cases finding specific public policy against employing untruthful police officers, Courts rely on specific state statutes. In cases finding no specific public policy favoring termination of untruthful police officer, Courts did not find a state statute upon which they could base a specific public policy argument.

QUERY: 1. What about state statutes that consider a violation of rules grounds for termination? (See Ind. Code 36-8-3-4(b)(2)(B)). Most Police Departments require truthfulness as a condition of employment. Is untruthfulness a violation of rules and, if so, is that in and of itself sufficient to justify termination? 2. What if a prosecutor refuses to accept cases or testimony based on concerns over Brady Officers or Brady Lists? Does such a determination effect the officer s capacity to serve as a law enforcement officer? (See Ind. Code 36-8-3-4(b)((2)(D)).

Risks of Personal and Departmental Liability

Criminal defendants have begun to bring 1983 claims against officers and agencies where potentially exculpatory information has not been disclosed. This include general exculpatory information and information regarding officer s truthfulness or credibility. Law enforcement agencies may face two types of civil liability in the Brady context: 1. A law enforcement agency s systematic failure to comply with Brady requirements could be found to be a pattern and practice, under 1983. 2. Law enforcement agencies may incur liability if they fail to train officers regarding the disclosure requirements in Brady. Some Circuits require bad faith to be proven on the part of police officers or other governmental agents to demonstrate entitlement to damages pursuant to 42 U.S.C. 1983, while other Circuits do not require bad faith.

No Bad Faith Required Tennison v. City and County of San Francisco, 570 F.3d 1078 (9 th Cir. 2009) Brown v. Miller, 519 F.3d 231 (5 th Cir. 2008) Moldowan v. City of Warren, 570 F.3d 698 (6 th Cir. 2009) Steidl v. Fermon, 494 F.3d 623 (7 th Cir. 2007) Bad Faith Required White v. McKinley, 519 F.3d 806 (8 th Cir. 2008) Porter v. White, 483 F.3d 1294 (11 th Cir. 2007) Jean v. Collins, 221 F.3d 656 (4 th Cir. 2000)

Tennison v. City and County of San Francisco, 570 F.3d 1078 (9 th Cir. 2009). 1983 case filed by 2 men who wound up serving 13 years in jail on a conviction for murder before being set free based upon a finding of factual innocence. Suit was filed against the SFPD and 2 homicide inspectors who allegedly withheld exculpatory evidence and manufactured and presented perjured testimony. Homicide investigators claimed absolute and/or qualified immunity. In finding no immunity the 9 th Circuit held it was not required that the 1983 plaintiffs demonstrate bad faith on the part of the police investigators. Instead, it is sufficient if plaintiffs demonstrate deliberate indifference or reckless disregard for an accused s rights or for the truth in withholding evidence from prosecutors.

Brown v. Miller, 519 F.3d 231 (5 th Cir. 2008). Lab technician knowingly suppressed blood test results that were exculpatory of Brown, the defendant. Brown served 2 decades in prison for rape before DNA results led to his ultimate release and acquittal. Brown filed 1983 action against lab technician and police officers involved in alleged suppression of evidence. 5th Circuit refused to grant governmental immunity to lab technician on the grounds that deliberate concealment of exculpatory evidence gives rise to liability under 1983.

Moldowan v. City of Warren, 570 F.3d 698 (6 th Cir. 2009). No showing of bad faith is necessary to state a constitutional violation and overcome qualified immunity. Where material exculpable evidence is concerned, the mental state of the government official withholding that evidence is not relevant to determining whether a due process violation has occurred. Steidl v. Fermon, 494 F.3d 623 (7 th Cir. 2007). No qualified immunity available in 1983 case for failure to disclose exculpatory evidence. Plaintiff must only establish that the duty of law enforcement to disclose exculpatory evidence is well established.

White v. McKinley, 519 F.3d 806 (8 th Cir. 2008). Plaintiff was charged and convicted of child molestation. The Defendant Police Officer who investigated the molestation charge developed a romantic relationship with the child s mother and, as a result, the Officer was accused of withholding exculpatory evidence. The prosecutor in the case was made aware of the relationship but failed to disclose it to the defense. In describing the necessity that a 1983 claimant demonstrate that the police officer acted in bad faith the court stated: Failure to disclose exculpatory evidence does not constitute a denial of due process in the absence of bad faith. The 8 th Circuit went on to hold that the issue of whether the officer acted in bad faith was a question for the jury.

In Porter v. White, 483 F.3d 1294 (11 th Cir. 2007), the 11 th Circuit held that a 1983 plaintiff must prove that a law enforcement official acted in bad faith in withholding exculpatory evidence in order to state a claim for deprivation of his constitutional rights. In Jean v. Collins, 221 F.3d 656 (4 th Cir. 2000), the 4 th Circuit held that police officers were entitled to qualified immunity because a 1983 plaintiff failed to show that the police officers had the requisite bad faith in failing to disclose the fact that the testimony of the eyewitnesses had been enhanced and influenced by hypnosis.

What Can You Do?

Evaluate how officers will be assessed by the Prosecutor s Office or District Attorney s Office if truthfulness or credibility charges are sustained. Determine whether Prosecutors or District Attorneys in your jurisdiction keep a Brady List or designate disciplined officers as Brady Officers. This may tip off Prosecutors, D.A.s, or your Department to these concepts when they may not know. Share this information and the consequences of it with your membership. Counsel Officers facing discipline for their truthfulness or credibility as to the gravity of the charges and potentially career ending consequences. Work with your Department to ensure that disciplinary charges unrelated to truthfulness or credibility are clear and that officers are not overcharged.

Always disclose information to the Prosecutor which may be exculpatory. In most criminal cases, evidence and information regarding your truthfulness and credibility is required to be disclosed to defendants. Even the appearance of impropriety in your record can subject you to being placed on a Brady list or impeached at trial. Recognize the potential for career ending administrative action if you are accused of any untruthfulness or dishonesty. Be prepared for the seriousness of the situation. Attempt to avoid any sustained findings of untruthfulness or dishonesty in order to preserve your employment record.

Leo T. Blackwell ltb@rucklaw.com John F. Kautzman jfk@rucklaw.com RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK www.rucklaw.com