FOI FYI: What is a Brady list?

FOI FYI: What is a Brady list?

Prosecutors and the public have a shared interest in knowing which officers are untrustworthy.

Written by
Edited by Michael Morisy

While law enforcement testimony is often critical at trial, if it comes out that a police officer has a history of lying, excessive force, or other misconduct, it can sink the whole case — particularly if this misconduct was not disclosed in advance to the defense.

To prepare against such circumstances, some district attorneys compile Brady or Giglio lists, the collected names of officers whose criminal or disciplinary histories make them unreliable witnesses at trial. So-named after two important Supreme Court cases that helped guard citizens’ 14th Amendment due process rights, in some jurisdictions these lists are the only materials kept about which law enforcement employees have histories of misconduct.

Not every district attorney keeps such a document, and there have been variably successful attempts to make these required records. It’s the sort of thing journalists, accountability advocates, and even some district attorneys just love to see. On the other hand, there’s some obvious opposition to making, and definitely to releasing, a “bad cop” list — coming, of course, from the police themselves.

What were the Brady and Giglio cases?

John Brady, alongside Charles Boblit, was convicted and sentenced to death for a 1958 murder. During his case, the prosecution failed to disclose that Boblit had confessed to having committed the killing. In the 1963 decision of the landmark Brady v. Maryland, the Supreme Court found Brady’s due process rights had been violated because the prosecution hadn’t provided “material evidence” that would have certainly affected how Brady’s guilt was measured and how he was sentenced. A few years later, the court decided in *Giglio v. United State*s that it was also a failure of due process for the prosecution to fail to share the fact that a witness had gotten a deal in exchange for testimony.

Together, these two cases helped to establish that a prosecution has a responsibility to disclose information, like that affecting a witness’s credibility and, in particular, a police officer’s credibility. Failure to do so could invalidate the entire event.

What’s a Brady list?

Sometimes, to avoid the mess that could come with calling an unreliable cop to the stand, district attorneys’ offices keep their own list of officers that have known credibility or misconduct issues. It’s not always guaranteed that a district attorney will keep a “Brady list” or a “Giglio list” or that they’ll provide the same when requested. Attempts to standardize these records are regularly fought off by police unions and representatives. Most offices are not required to keep them.

Access to Brady lists, though, can help provide the oversight of police departments that state and federal agencies haven’t been. Simply releasing the records creates the kind of transparency that would make it tough to miss which officers have had past problems and maybe shouldn’t be testifying or hired. For journalists and other agents of law enforcement accountability, understanding which police officers are known to be untrustworthy can make their watchdog work more effective. A recent review by the USA Today Network, for example, uncovered that, in the last decade at Florida’s Hendry County Sheriff’s Department, more than 50 officers found guilty of misconduct at other law enforcement agencies had been hired. Part of the investigation relied on Brady list records.

The lines determining exculpatory evidence and Brady disclosure needs are fuzzy, and a lot can be left to police department discretion. Standardization efforts have been slow and controversial. In September, citing the cost associated with its implementation, California Gov. Gavin Newsom vetoed a bill to standardize departments’ tracking and sharing of officers with credibility issues, which had been built on policies in effect in Ventura County. A New Hampshire state Supreme Court ruling issued Friday pushed back the possible release of the state’s Brady list, awaiting further consideration of its effects on personal privacy. In both cases, local law enforcement unions have fought against the release of the lists, criticizing them as destructive to officers’ lives.

So how do I get my hands on one?

You can try a freedom of information request.

Of course, there’s no guarantee that you will get what’s been requested. Agencies may not keep these records or want to release them. Others may easily understand your interest and hand right over what you want.

The Office of District Attorney Rachel Rollins in Massachusetts published in September the list of officers found in its Law Enforcement Automatic Discovery database, more than 115 individuals who have been found to have committed previous crimes or misconduct. This included the nine current and former Boston Police Department officers recently charged with an overtime pay scandal.

MuckRock users have also filed a number of Brady list requests with success, like this one with the Thurston County Prosecutor’s Office.

You can find the list of requests that have been completed publicly available here.

Image via United States District Court for the Eastern District of New York.